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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

Is $21 million in attorney's fees the best way to spend conservation dollars?


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Attorney's fees play a significant role in Endangered Species Act litigation and the shaping of federal environmental policy. But for years, ESAblawg has openly questioned whether the fee-shifting provision are beneficial policy or a financial lubricant for a counterproductive environmental litigation industry.  With the federal debt exceeding $15 trillion, the matter of money management deserves at least some of the scrutiny it is currently receiving from the U.S. House of Representatives Natural Resources Committee.

To the dismay of some Congressmen, laws such as the Equal Access to Justice Act (EAJA), and various citizen suit provisions of environmental laws such as Section 11 of the ESA, require litigants to recover attorneys fees (and sometimes costs, too) from the federal government.  Some statutes require the litigants to be a prevailing party, others merely require that the litigation be a catalyst for governmental action. Either way, however, the government pays millions of dollars to lawyers who succeed in persuading the courts to order something that the government did not do, or did not want to do.

But one of the thorniest complications with any effort to understand how much (or how little) is gained from these laws is simply the data.  Sadly, we do not know quite how much is spent, on what, or why. According to an April 2012 Government Accountability Office review of the amount of attorney's fees paid by the Departments of Agriculture and Interior:

Most USDA and Interior agencies did not have readily available information on attorney fee claims and payments made under EAJA and other fee-shifting statutes for fiscal years 2000 through 2010. As a result, there was no way to readily determine who made claims, the total amount each department paid or awarded in attorney fees, who received the payments, or the statutes under which the cases were brought for the claims over the 11-year period. Both USDA and Interior officials stated that given the decentralized nature of their departments and the absence of an external requirement to track or report on attorney fee information, decisions such as whether to track attorney fee data and the manner in which to do so are best handled at the agency level. Specifically, officials from 65 of the 75 USDA and Interior agencies we contacted told us that they did not track or could not readily provide us with this information. The remaining 10 USDA and Interior agencies either had mechanisms to track information on attorney fees or were able to compile this information manually using hard copy files or directed us to publicly available information sources where we could obtain the information. However, the extent to which these agencies had attorney fee information available for the 11-year period varied. Given this difference among these 10 agencies as well as various limitations—such as 5 USDA and Interior agencies not maintaining data about claims for attorney fees that were filed but denied—it is difficult to comprehensively determine the total number of claims filed for attorney fees, who received payments, in what amounts, and under what statutes.

The table below reflects GAO's best efforts to analyze Treasury data, but given the conclusion above, Congressional desire to reform laws related to fee shifting of attorney's fees seems understandable.

Table 5: Statute under Which Case Was Brought, Amount Paid, and Number of Payments Paid by Treasury
from the Judgment Fund on Behalf of Interior, March 2001 through September 2010
Statute under which case was broughta Attorney fees and costs # of payments
Endangered Species Act, 16 U.S.C. § 1540
Civil Rights Act Title VII, 42 U.S.C. § 2000e-16
Tucker Act (inverse condemnation & other claims), 28 U.S.C. § 1491
Privacy Act, 5 U.S.C. § 552a
Freedom of Information Act, 5 U.S.C. § 552
Age Discrimination In Employment Act, 29 U.S.C. § 633a
Outer Continental Shelf Lands Act, 43 U.S.C. § 1349
Clean Water Act, 33 U.S.C. § 1365
Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270
Fair Labor Standards Act, 29 U.S.C. § 216
American Indian Trust Fund Management Reform Act of 1994, 25 U.S.C. §§ 4011, 162a
Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3117
National Historic Preservation Act, 16 U.S.C. § 470w-4
Resource Conservation and Recovery Act, 42 U.S.C. § 6972
Payments for which statute could not be determined
Rehabilitation Act (disability discrimination), 29 U.S.C. §§ 791, 794a
Tucker Act (tort claim), 28 U.S.C. § 1346

Table from U.S. Government Accountability Office, Letter to Congressional Requesters (April 12, 2012)
Subject: Limited Data Available on USDA and Interior Attorney Fee Claims and Payments

Ideally, if reform comes, it will be across the board, not just a political exercise in limiting environmental litigation. But the current leader of the dialogue for reform is Congressman Doc Hastings, who the environmental community insists is no friend of the ESA. See Endangered Species Coalition. Mr. Hastings recent support of protection for Columbia River salmon by allowing take of salmon-feasting sea lions adds nuance to the analysis. But then again, the title of the most recent hearing -- Oversight Hearing on "Taxpayer-Funded Litigation: Benefitting Lawyers and Harming Species, Jobs and Schools" (June 19,2012) -- is anything but nuanced.

Nuance (and a sense of irony) seems to be lacking from the Center for Biological Diversity, too. Reacting to the calls for reform, CBD recently declared that "Hastings Relies on False Information in Attacks on Endangered Species Cases." See press release.  The CBD press release also contains distortions. To begin with, in an effort to minimize the $553,000 collected by CBD, they compare the figure their one organization received to the amounts collected by "industry groups."  (Mr. Hastings, in reply, claims that CBD ignored the costs of the payments to third party lawyers who represented CBD.) But suspect accounting is not the only failure in CBD's logic.

In an effort to substantiate the overall benefits of the ESA, CBD developed a report on the recovery trends of endangered and threatened species. In the analysis, CBD explained that recovery takes as long as 46 years, and concluded 90 percent of species are recovering on time. See CBD report. Just give it time, they argue, and thus CBD rejects criticism that the ESA hasn't achieved its goals of species recovery. But that logic applies equally to CBD; its lawsuits usually seek instantaneous action by the government because of delayed responses to CBD's demands. Aren't those lawsuits equally premature, and subject to the same "give it time" response? Indeed, of the 100 representative species considered in CBD's own report, 67 of them were listed before CBD even existed. In other words, these species were put on their path towards recovery without the need for attorney's fees or environmental lawsuits filed by CBD.  Perhaps the litigation (and the attorney's fees payments) are not as necessary as CBD (founded in 1989) would have us believe?

Ignore CBD for a moment. (Yes, that's hard for ESA-watchers like me.) Any debate over the shifting of attorney's fees needs to recognize that the issue involves more than just the direct payment of dollars from the federal treasury to a single litigant. Every lawsuit filed by a non-profit group (or an industry group) also requires the federal government to pay for the Department of Justice lawyers, agency staff, and the federal court system that supports the case. And that raises another problem: the perverse incentive of the fee-shifting provisions, and its potential to interfere with settlement of lawsuits. Many laws require the litigant to be a "prevailing party." So, given the choice of a settlement without fees, or a roll-of-the-dice for a court order resulting in the payment of attorney's fees, many litigants will choose the latter. And as a result, in the absence of a settlement, the taxpayers keep paying, not only for the plaintiff litigant, but also for the DOJ lawyers, the agency staff, and the courts. See, e.g. "Settlement Offers Conditioned Upon Waiver of Attorney's Fees: Policy, Legal and Ethical Considerations," 131 U. Pa. L. Rev. 793 (1983).

Furthermore, if and when attorney's fees are paid, they are not paid at actual cost. For example, assume that a CBD lawyer is paid $70,000 annually. If CBD receives an attorney's fees award, the fees gained by are not based on a pro-rated portion of that attorney's time. Instead, a "lodestar" calculation of (actual hours) x (billable hourly rate) is performed to determine the payment. CBD (and every other litigant) has an incentive to file in the jurisdictions with the highest possible attorney's fees hourly rate, and to provide "proof" of the local "market rate" which may be subject to "enhancement" for expertise, culminating in rates exceeding $450 per hour. (San Francisco is home of the Sierra Club, and New York City is home of Natural Resources Defense Council.) The result: 40 hours of work by a Tucson, AZ based senior staff attorney, estimated (probably overestimated) as costing CBD approximately $2000 in salary and benefits, can earn an attorney's fees award of as much as $18,000.  It's just math.

As the New York Times notes in discussing this issue, there is room for argument by both critics and supporters of attorney's fees payments for environmental litigation. Indeed, there is reason for caution. In his testimony before Congress, Lewis & Clark law professor Dan Rohlf (a worthy adversary, by the way) testified that "Litigation does not harm species, jobs, or schools; indeed, quite the opposite is true." He went on to explain that taxpayer-funded ESA litigation helps fund clinics and train new lawyers who advocate for species and other worthy causes, who protect the public interest, and who ensure that government abuses are caught by citizen watchdogs. The concept of fee shifting has especially noble origins, seeking to ensure that the poor had access to justice when government wrongdoing was proven in court. See Congressional debate discussed on ESAblawg.

To maintain those ideals and values, and to preserve the fairness of EAJA, any reform of fee shifting laws could also include exceptions for the isolated individual in certain types of cases -- the elderly lady forced to hire a lawyer over a social security disability claim, or the special needs child suing over educational access, or maybe even an environmental watchdog who discovers an egregious government error.  See GAO Report on fee shifting statutes. But many reasonable reforms could still be pursued, such as (a) setting a lower, fixed, inflation adjusted hourly rate paid for all federal cases, (b) eliminating fee "enhancements" for expertise, (c) restricting the criteria for various types of organizations to even be eligible for seeking fees, (d) capping the total amount that can be collected by a litigant, both on an annual and on a longer-term basis, and (e) increasing the government's ability to argue that a decision was "substantially justified" as a basis for denying attorney's fees.

As CBD said in its own press release: "If we’re going to have a real discussion about the best way to save endangered species, it has to be based on facts."  True enough. So consider this fact: of the dollars it could account for, GAO reported that $21,298,971 in attorney's fees was paid in Endangered Species Act related cases against Interior during the period from 2001-2010. Those dollars, in the context of federal funding for conservation, are significant. By comparison, the proposed 2013 budget for the Department of Interior's entire listing program is $22,431,000 (a figure that has dramatically increased in recent years).   These numbers cannot be ignored. When federal debt management is part of the discussion, eliminating the payout of attorney's fees to multi-million dollar enterprises -- for-profit and non-profit alike -- seems like an easy choice. The Sierra Club has a $100 million budget in 2012. See New York Times. NRDC has a $95 million budget. See Marc Gunther. Even niche player CBD has a operating budget of $5.4, and $10 million in assets. See CBD Annual Report (2011).  Given these figures, reform of attorney's fee shifting provisions is not the outlandish idea that the environmental community suggests.  

But perhaps the most important fact is this: environmental groups like CBD, Sierra Club, NRDC and many more have already proven themselves to be capable voices for endangered and threatened species. These well financed groups, and their lawyers, will not disappear, even if the amount paid pursuant to fee shifting statutes were reduced. If the environmental advocates actually had to watch their own dollars, and lacked the incentive of attorney's fees payouts in every case, then many lawsuits might not be filed, and perhaps only the most deserving cases would make it to court. In the end, the species these groups hope to protect would be better served if our federal conservation dollars were spent on something other than environmental lawyers. As Professor Rohlf, an advocate for fee shifting, admitted in his written Congressional testimony: "the single most effective step that can be taken to recover threatened and endangered species – and thereby increase the pace of delistings – is to support more funding for recovery efforts."  

While statutes requiring the government to pay attorney's fees have their flaws, as explained in this musing, and while reasonable minds may differ over some of the policy choices at issue, any suggestion that the non-profit environmental lawyers are getting wildly rich on taxpayer dollars is off the mark. The Executive Director's annual salary is $123,961, and other Director salaries range from $47,000 to  $102,000 annually. See CBD Form 990. Even the CBD headquarters is thrifty; as reported in the Tucson Citizen (source of the CBD "in action" headquarters meeting photo above), the Center for Biological Diversity headquarters is a small warehouse, borrowed from a gem dealer. CBD even exits the facility for three weeks each winter for a gem, mineral & fossil show.

House Oversight Hearings: merely theater, or a preview of Endangered Species Act reform?


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Yesterday, a House Natural Resources Subcommittee held an oversight hearing on the 2013 budgets proposed by the National Oceanic & Atmospheric Agency and U.S. Fish & Wildlife Service. Understandably, some members of Congress were unhappy with requests for an increase in funding compared to prior years. “After examining these budgets, it is clear that none of them reflect the reality of our current economic situation… they are frankly not serious documents,” said Subcommittee Chairman John Fleming (R-LA). But the hearing turned upon the Endangered Species Act, and Natural Resources Chairman Doc Hastings’ (R-WA) voiced frustration with increased spending on ESA implementation and litigation:

“As our nation faces a $15.5 trillion debt that grows by over $4 billion every day, the two agencies appearing today are responsible for managing national fish and wildlife and marine resources and are requesting a combined total of over $200 million more than together they received last year -- including for more Endangered Species Act (ESA) listings and regulations. Regrettably, the sizable portion of these agencies’ budgets that already goes to managing endangered species programs focuses less on prioritizing and recovering species than on paying costly attorneys’ fees, avoiding and defending procedural lawsuits, meeting court deadlines, and responding to court orders stemming from the agencies’ own poorly drafted rules and regulations.”

In truth, ESA related spending is a tiny fraction of the federal budget; less than 2 percent of all federal funds are spent on conservation. As U.S. Fish & Wildlife Service Director Dan Ashe explained in his written comments: “The budget includes $179.7 million to administer the Endangered Species Act, an increase of $3.7 million when compared with the 2012 enacted level. This includes a $1.5 million increase for renewable energy consultation, $1.0 million for science for pesticide consultation, and $400,000 for cooperative recovery of endangered species on wildlife refuges and in surrounding ecosystems.” (The written comments offered by NOAA Administrator Jane Lubchenko contain no mention of the ESA. Instead, NOAA’s request focused on the need for satellite services to support weather, climate and coastal science.)

Given their power over the federal purse, the Congressional members' concerns with $197 million are justified, but the suggestion that the agencies are the problem is unfair. The agencies are simply doing what the law (and courts) require them to do. The Endangered Species Act sets rigid deadlines for review of every petition to list a species. Eventually, if the petitions are not acted on, litigation follows. And upon review, the courts have no choice but to order the agencies to follow the law that Congress passed, and to order compliance with the deadlines in the ESA. For better and for worse, the recent settlements with WildEarth Guardians and the Center for Biological Diversity, and the accompanying costs, simply reflect the realities of the statutory scheme. (See FWS) And over time, the result of this proces (as a map cited by Rep. Hastings colorfully suggests) is an increase of listed species in each state.

Map from the House Natural Resources Committee webpage

Sooner or later, the Congressional frustration will lead to reform. The risk, however, is reform that goes too far... and that would truly be a waste. The Congressional findings that supported the Endangered Species Act in 1973 are just as valid today.  As Congress found and declared, four decades ago: "(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." 16 U.S.C. §1531(a). Given these findings, the ESA was intended "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. §1531(b).  But the worthy ambition to save, protect and recover species creates substantive and procedural problems, too.

In substance, the policy choices in the ESA create what the Congressional Research Service calls conflicting values. In other words, the ESA forces humans to forego their ambitions and desires to benefit other species. While it may be easy for a crusading urban environmentalist to demand a sacrifice, the pain is felt more acutely by the rural farmer whose access to water is denied. So one of the fundamental problems with the Endangered Species Act, one that arises again and again, is a fundamental disagreement over whether, and to what extent, humans should sacrifice to protect other species. Ted Williams of Audubon Magazine passionately believes that all species have inherent value deserving of protection; but other humans disagree, including the Pacific Legal Foundation.  To reconcile the conflicting values, and especially the tension between preservation and property rights, ESA reform must include -- gasp! -- compromise. We humans may have "dominion" over the Earth, but the governance of a ruler cannot and should not be a path to self-destruction. Humans must serve as stewards of our planet. See, e,g. Mere Environmentalism.

The process created by the ESA to achieve that stewardship is also burdensome, and like humanity, imperfect. Listing determinations, critical habitat designations, consultations, permits, litigation, attorney's fees, enforcement and compliance: these activities demand substantial human and financial resources. And the burdens of providing these resources fall upon industries, landowners and taxpayers who are then motivated to oppose the ESA's goals. In fact, many actions by the environmentalists to obtain protections for an imperiled species simply trigger new outrage from other people who endure the additional burdens and who do not appreciate the value of the species (or maybe even its ecosystem). See, e.g. Klamath Bucket Brigade.  Furthermore, the lawsuits filed by environmental advocates fail to serve as a procedural tool for shaping values. While they might achieve the short term goal, the long-term conflict remains. The values conflict becomes even more entrenched.

Compounding the substantive and procedural difficulties of ESA implementation is the reality of uncertainty. The ESA's reliance upon the ambiguous "best scientific and commercial data available" concept is intentional, but such flexibility comes at a price. Every decision can be second-guessed. To manage biological diversity IS to manage uncertainty. There is no single right answer; indeed, the ESA itself refers to the agency's most significant management document as a "biological opinion." For our interactive and human-dominated planet, there is no absolute biological answer.  In a radically changing world of climate change and exotic species invasions, not every species can be saved. Death and extinction is the only certainty, and the Sixth Wave is underway. As these inevitable changes have their effects, more and more species will need to be listed for protection, and the ESA conflicts will grow with impossible intensity. In that not-so-distant future, reform of the ESA seems a far better outcome than repeal.

Previously, ESAblawg suggested a three part plan for ESA reform. First, Congress could create a process that enables the U.S. Fish & Wildlife Service, and NOAA Fisheries, to set the order of species priorities, based on Congressionally established criteria, rather than litigating every listing petition that is filed by a concerned group. See ESA blawg, discussing "bulk petitions.". Second, Congress could reform the citizen suit provisions of the ESA, along with perverse attorney's fee-shifting provisions that create incentives to sue the government. See ESA blawg (discussing fees litigation) and ESA blawg (discussing settlement disincentives). Third, if Congress is going to allow species to go extinct, it could be more honest about that choice, streamline the process, and again, specify criteria. Delisting decisions would then allow the agencies to divert their limited funds from one hopeless species to another species that might survive.  See ESA blawg (discussing triage).

Sadly, empowering the government to make the terrible decision to allow a species to go extinct creates equally intolerable risks. Any attempt at ESA reform must include some mechanism allowing for checks and balances upon abuses of executive power. That point was demonstrated by Ms. Julie MacDonald, a former Department of Interior senior official during the Bush administration who abused her authority and pressured scientists to change their opinions to conform with her politically-preferred outcomes. See ESA blawg on "the Big Mac attack." As the Department of Interior's own Inspector General concluded, the federal official charged with supervising ESA implementation had violated her basic obligations of public service. See, Report of Investigation, Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks (posted by the Center for Biological Diversity here)

The internet contains many proposals to reform the Endangered Species Act. Many proposals are, as expected, from the affected interest groups: the National Endangered Species Act Reform Coalition (NESARC); the American Enterprise Institute; land and livestock producers. On the other hand, even the U.S. Fish & Wildlife Service has its own webpage dedicated to "improving ESA implementation". Nevertheless, Congressional reform of the ESA is already underway, using an incremental approach. The Natural Resources Defense Council Switchboard blog has worried about legislative maneuvers to evade ESA application to salmon, otters and more, and Congress has used budget riders to delist the wolf in some states. See ESA blawg.

Ultimately, the recent Congressional hearing might produce nothing but noisy political theater, but it also has the potential to generate large scale reform. For the moment, the environmental advocacy groups appear to be adhering to the status quo.  But five years ago, when Congress last considered ESA reform, one citizen wrote a letter to the High Country News with a prognostication: "I believe that blind opposition to any reasonable reform of the Endangered Species Act is eventually going to lead to unreasonable reform."  Sad, and probably true.

Endangered Species Act tweetings: shooting owls, rhinos, and mountain lions


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Top policy stories: The White House, grappling with ESA realities, announced a new focus on economics and Barred Owl control as part of the Northern Spotted Owl management efforts.  The process could invite litigation but gain judicial deference. And the other big regulatory initiative, the Administration’s proposed significant portion of the range policy, continues to face its critics. But implementation of controversial rules may be just the beginning of ESA reform. The Natural Resources Defense Council and others are increasingly concerned about Congressional actions affecting one species at a time, or one location at a time. And calls for wholesale Endangered Species Act reform continue, too, with a NJ editorial Beef USA and the House Natural Resources Committee chiming in. All the controversy proved too much for a senior Idaho official who resigned, tired of fights among friends as state authorized hunts killed 318 wolves Is Sen. Jackson's legacy in sheparding the ESA through Congress being undone?


ABCs (amusing, bizarre & criminal):Trafficking in rhino horns (photo above by USFWS from earns jail time, reports the Sac Bee A California official who shot a mountain lion is sued for ethics violations Shell Oil takes the offensive and sues the environmentalists first  Beware the snake killing fungus Unable to get permits, zoos giving up on keeping polar bears

Miscellaneous: The media does a poor job of covering science, says Joshua Gilder in U.S. News. ... So maybe all of this is wrong? Bay Delta Conservation Plan negotiations continue  N.D.Cal. litigation underway over ESA & pesticides Farmers try to get megasuit dismissed But North Dakota sent EPA its own plans for pesticides Mosaic Fertilizer in Fla. seeks amended Incidental Take Permit, covering scrub jay & indigo snake impact for 41 years. Hawaiians wary of NOAA re: turtles? Pebble Mine in rural Alaska could conflict with protection of valued fishery & sockeye lake, reports AP. FWS Federal Register announcements include taxonomic revision for the willowy monardella critical habitat for Riverside Fairy Shrimp 18 species enhancement permits more comment on Dunes Sagebrush Lizard and listing decisions for Spikedace, Loach Minnow freshwater mussels and Oregon spotted frog

 The content above comes from @ESAlawyer on Twitter.

New approach to Northern Spotted Owl critical habitat designations invites litigation risk, but may also gain judicial deference


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Earlier today, President Obama issued a new memorandum entitled: Proposed Revised Habitat for the Spotted Owl: Minimizing Regulatory Burdens.  The document sets forth the public process and criteria to be used in revising the designated critical habitat for the threatened owl species. See also, Department of Interior announcement.

As the memorandum admits, the administration is being responsive to the litigation realities of the Endangered Species Act.  While protection of the Northern Spotted Owl will remain an essential aspect of any future decision -- as it must -- the memorandum also acknowledges two other important policy considerations: (1) "pragmatism" (or, in other words, "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice") and also (2) "approaches that maximize net benefits."  This policy approach seems fully consistent with the Endangered Species Act. After all, in the arena of critical habitat designations, the ESA explicitly allows for economic considerations. "The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat..." 16 U.S.C. 1533(b).  Nevertheless, the federal official who decides to consider economic impacts, to respect flexibility, or to achieve net benefits will face an adversarial process where courts remain empowered to reverse those decisions.

Indeed, the memorandum practically invites those legal challenges. For example, it suggests that the benefits of excluding private and State lands may be greater than the benefits of including those areas in critical habitat. While this approach could quickly eliminate much of the opposition to critical habitat designations, preservation minded environmental advocates would surely disagree with a wholesale exclusion of private lands. Other preservationists will disagree with the memorandum's embrace of active management and logging as a path to ecosystem diversity and forest resilience. And animal rights advocates will cringe at the notion of experimental removal of barred owls, using "both lethal and non-lethal" means, in an effort to reduce the inter-species competition. See U.S. Fish & Wildlife Service Fact Sheet.  Anyone doubting the inevitability of future litigation should read today's headline from Science Insider: "U.S. Proposes to Save Spotted Owl With Chainsaws and Shotguns."

Still, the proposal offers new thinking, and may yield substantial benefits. If nothing else, the final rule will be well-vetted by a public process, and the reasoning behind the ultimate decisions reached by the U.S. Fish & Wildlife Service will be fully transparent.  As a result, the judge (or judges) who review the future legal challenges may be more likely to give deference to the agency.  For an agency besieged by litigation anyway, a new approach is warranted. And, in the end, the final rule might even benefit the Northern Spotted Owl, too.


As explained by Smithsonian Magazine, "an epic battle between environmentalists and loggers left much of the spotted owl's habitat protected. Now the celebrity species faces a new threat — a tougher owl." Image of Northern Spotted Owl, above, from Wikipedia.  Image of barred owl, below, from Wikipedia



Keith W. Rizzardi, teaches administrative law at St. Thomas University, serves as Special Counsel to Jones Foster Johnston & Stubbs, P.A., and "tweets" about the Endangered Species Act @ESAlawyer.

Merger of fisheries agency into Interior Department is no joke


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The National Marine Fisheries Service (NMFS) manages and regulates the nation’s fisheries. International trade in fisheries contributes $70 billion annually to our nation's economy, so NMFS, in conjunction with other agencies, plays an important role in ensuring sustainability of our oceans. As President Obama lightheartedly explained in the 2011 State of the Union: "The Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them when they're in saltwater. I hear it gets even more complicated once they're smoked."

It was more than just a laugh line. One year later, in January 2012, the President announced his plan to consolidate government and to merge NMFS (pronounced “Nymphs”) into the Department of Interior. See The Hill. But as President Truman once said, "the only thing new in the world is the history you don't know." So consider the history: in 1966, the Marine Resources and Engineering Development Act launched a new national program in marine science and ocean exploration. Related proposals to create a Department of Natural Resources failed, so the National Oceanic and Atmospheric Administration (NOAA) was eventually created within the Department of Commerce. NMFS, an entity within NOAA, also merged portions of the Department of Interior's Bureau of Sport Fisheries and Wildlife with the Department of Commerce's Environmental Science Services Administration. In other words, the recent merger proposal is a back to the future moment in federal natural resource management.

The proposal reveals a tension between efficiency and effectiveness. Efficiency concerns favor a merger of Interior and NMFS. Expensive leadership positions could be reduced, less interagency coordination will be needed, and some duplication of functions could be eliminated. Over time, a Department of Natural Resources might even become reality. One department could manage and regulate all our nation’s resources, from sea to shining sea, on subjects ranging from ocean energy to mountaintop mining.  Effectiveness, however, suggests that thoughtful caution is warranted, for three reasons.

First, the effort to reduce duplication could lead to a loss of niche expertise. Huge differences exist between managing mountains, forests, deserts, prairies, wetlands, estuaries, coral reefs and the oceans. Moreover, the White House is actively implementing the National Ocean Policy, seeking to transform our thinking about ocean management. These activities all require specialized expertise. And while the divide of expertise between Interior and NMFS can be frustrating, it also makes a degree of sense. Even in elementary earth science thinking, concepts divide between land, sea or air. If the Department of the Interior serves the land, then why merge NOAA into Interior? Why not a separate Department of Oceans and Atmosphere?

Next, the realities of regulatory independence must be acknowledged. No longer an independent agency within the Department of Commerce, a reorganized NMFS would share walls with governmental entities responsible for dams, mining, grazing and ocean energy. In other words, when NMFS exercises its regulatory authority, for example, by implementing the Endangered Species Act and saying “no” to an industry activity supported by another entity within the Department of Interior (think oceanic oil exploration), NMFS will confront the same difficult interdepartmental politics that already affect the Fish & Wildlife Service regulators. (This is a major concern to the Natural Resources Defense Council.) However, it is also true that regardless of who resolves those inter-agency tensions -- the Secretary of Interior, or the Council on Environmental Quality -- all of them serve the President and his policies.

Finally, and perhaps most significantly, budgetary politics must be considered. As an entity within the Department of Commerce, focused on a job-producing industry, NMFS maintains respectable funding, and high scientific standards, with a budget of roughly $1 billion in 2010. By comparison, even though Americans love our National Parks and endangered species, the National Park System and the Fish & Wildlife Service struggled to meet their mandates with annual budgets in 2010 of $2.7 billion and $1.6 billion, respectively. Would NMFS, when it appears before a whole new group of Congressional committees, as part of a $12 billion Department of Interior, still be able to compete with these other needs and priorities for its slice of the federal funding pie chart?

Perhaps all these concerns can be overcome, and the realities of our federal budget necessitate the merger of NMFS into the Department of Interior. But this dialogue over the structure of government will have lasting impact on our oceans, our fisheries, and our endangered and threatened aquatic species.

Photo of threatened olive ridley sea turtles from the State of Alaska Department of Fish & Game. While the President told his 2011 State of the Union joke about the management of endangered salmon, it becomes more accurate if told about sea turtles: "FWS manages turtles on land. NMFS manages them at sea. Imagine how hard it is to make soup?"

Keith W. Rizzardi chairs the Marine Fisheries Advisory Committee, teaches environmental law at St. Thomas University School of Law in Miami Gardens, and writes about the Endangered Species Act on Twitter @ESAlawyer

Extinction rider averted, for now.


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While Congress may still bring on financial Armageddon, at least our legislators thought better of passing the "extinction rider."  Instead of ending the funding for the entire Endangered Species Act listing program (see prior ESA blawg), the New York Times today explained that Congress is now considering a piecemeal approach that defunds listings for the dunes sagebrush lizard or lesser prairie  chicken, and that defunds recovery efforts bighorn sheep and Mexican wolves in the Southwest.


Meanwhile, thanks to the many readers who send me case materials during June and July 2011 to help me stay abreast of the ESA happenings.  

Another appropriations rider marks another policy failure for the Endangered Species Act.


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First, they came for the wolf.  Then they came for the dunes sagebrush lizard.  Now they've come for everything else. Legislators are rewriting the Endangered Species Act, one budget bill at a time.

A few months ago, Congress delisted the wolf in an appropriations rider. Both ESA blawg and the New York Times warned that Pandora's box had been opened.  Recent Congressional actions proved those warnings correct.

In an appropriations rider, Congressman Mike Simpson, who Chairs the House Interior and Environment Subcommittee, proposed to cease funding for all new species listing activity.  While the wolf delisting and the dunes sagebrush lizard listing may or may not be scientifically defensible, this sweeping bill has nothing to do with science.  Instead, it is a potentially deadly blow to the scientific integrity of the ESA.  Regardless of the status of a species, or the scientific basis for a new endangered listing, no money can be spent on species listing.  The money is gone, so the species will be gone, too.

Once again, the finger pointing will follow.  Some people will blame the budget and the economy. Others will accuse the Republicans of raw power politics.  A few more will blame overzealous environmentalists who abused the ESA as a land use litigation tool.  All the accusations hold degrees of truth.  According to Congressman Jim Moran (D-Va), who unsuccessfully sought to amend the rider, Simpson does not necessarily oppose new listings, but the rider intended to provide an incentive for environmentalists and other pro-conservation stakeholders to agree to a reauthorization of the law.  "The only way I can think of to do it is to force the issue," Simpson said. "This is a shot across the bow...  The ESA has become so contentious, so political and so litigious that it has become a policy failure."

Defunding the ESA listing process in a budget bill, like the wolf delisting, is the lazy, thoughtless way out.  But ESA blawg is the "thoughtful" blog discussing the Endangered Species Act.  Recognizing that Congressional inaction on our budget leaves little choice other than triage -- choices between which species to fund, or not to fund -- ESA blawg will now commit environmental heresy, and suggest three controversial reforms of the ESA.  

     1.  Congress could create a process that enables the U.S. Fish & Wildlife Service, and the NOAA Fisheries, to set the order of species priorities, based on Congressionally established criteria, rather than litigating every listing petition that is filed by a concerned group. See ESA blawg (discussing "bulk petitions").  

     2. Congress could reform the citizen suit provisions of the ESA, along with perverse attorney's fee-shifting provisions that create incentives to sue the government. See ESA blawg (discussing fees litigation) andESA blawg (discussing settlement disincentives).  

     3. Finally, if Congress is going to allow species to go extinct, it could be more honest about that choice, and streamline the process.  Existing listed species could be delisted, by the God Squad or some other process, if progress is inadequate.  Honest delisting decisions would then allow the agencies to divert their limited funds from a hopeless species to other species that might survive.  See ESA blawg (discussing triage).
Admittedly, compared to the ideals of the ESA, these are horrible ideas.  Many people will absolutely reject them, and understandably so.  But these suggestions are certainly better than our current path.  America needs honest and transparent reform of the Endangered Species Act to rebuild Noah's ark.  Budget bills are not the way to debate and rewrite one of our nation's most powerful environmental laws.

MOU increases NOAA role in regulation of ocean energy


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Last week, the U.S. Department of Interior and the U.S. Department of Commerce announced that they have signed a landmark Memorandum of Understanding (MOU) on Coordination and Collaboration Regarding Outer Continental Shelf Energy Development and Environmental Stewardship (May 19, 2011).  Through the agreement, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the National Oceanic and Atmospheric Administration (NOAA) intend to improve decision making related to ocean energy development, by improving use of science and expertise to fulfill the agency’s stewardship duties and to conserve the living marine resources and the ecosystems upon which they depend.  While the agreement does not alter legal responsibilities, it implements, in part, the agency responsibilities pursuant to the Endangered Species Act.  Notably, NOAA representatives will be working with BOEMRE on environmental analyses earlier in the regulatory process, the agencies will hold quarterly meetings of senior leadership officials to discuss ocean energy and related policy and scientific issues, and they expect to work together on safety issues and oil spill prevention and response efforts.

The Cape Wind project proposed for the Nantucket shoals would be the first offshore wind farm in the United States.  The wind farm would consist of 130 turbines and would generate 420 megawatts of power, nearly equivalent to the peak load for the Cape and Islands.  Working with BOEMRE's predecessor agency, the Minerals Management Service, NOAA approved abiological opinionfor the project in November 2008.  For more information, visit

NOAA says not yet to listing of the Atlantic bluefin tuna


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Yesterday, NOAA made its announcement of a decision on the Center for Biological Diversity's petition to list the Atlantic bluefin tuna, concluding that listing of the species was not warranted, however, NOAA also noted continued concern, and intends to revisit the decision with new science.  The statement further explained as follows: ":On May 27, 2011, after an extensive scientific review, NOAA announced that Atlantic bluefin tuna currently do not warrant species protection under the Endangered Species Act.  NOAA has committed to revisit this decision by early 2013, when more information will be available about the effects of the Deepwater Horizon BP oil spill, as well as a new stock assessment from the scientific arm of the International Commission for the Conservation of Atlantic Tunas, the international body charged with the fish’s management and conservation.  NOAA is formally designating both the western Atlantic and eastern Atlantic and Mediterranean stocks of bluefin tuna as 'species of concern.' This places the species on a watchlist for concerns about its status and threats to the species under the Endangered Species Act."

The Atlantic bluefin tuna, Thunnus thynnus, is regarded as one of the most prized species in the ocean. It’s also one of the biggest, reaching average lengths of 6.5 feet, and weighing about 550lbs.  One fish can sell for tens of thousands of dollars.  Bluefin, which remain a staple in some sushi restaurants, have been declining for decades due to overfishing.  A record-breaking $396,000 bluefin tuna was sold at auction in January 2011.  Bluefin tuna are at the top of the food chain, giving them an important role in the ecosystem. Top ocean predators, they sometimes hunt cooperatively, much like wolves.  With streamlined bodies and retractable fins, they can bolt through water at speeds of 50 miles per hour, crossing oceans in weeks.  Photo by NOAA available at

U.S. FWS and NOAA announce ESA reform efforts


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In a press release issued today, the U.S. Fish and Wildlife Service and NOAA Fisheries Service formally announced their joint effort to identify and implement administrative changes to the Endangered Species Act aimed at accelerating recovery of imperiled species, enhancing on-the-ground conservation delivery, and better engaging the resources and expertise of partners to meet the goals of the ESA.  The Services will work to harness the expertise of career agency employees, the conservation community, landowners and other affected interests, and the broader public, to address selected issues. In particular, efforts will focus on:

-- Clarifying, expediting, and improving procedures for the development and approval of conservation agreements with landowners, including habitat conservation plans, safe harbor agreements, and candidate conservation agreements;

-- Reviewing and revising the process for designating critical habitat to design a more efficient, defensible, and consistent process;

-- Clarifying the definition of the phrase “destruction or adverse modification” of critical habitat, which is used to determine what actions can and cannot be conducted in critical habitat; and

-- Clarifying the scope and content of the incidental take statement, particularly with regard to programmatic actions or other actions where direct measurement is difficult.  An incidental take statement is a component of a biological opinion that specifies the impact of an incidental taking of an endangered or threatened species and provides reasonable and prudent measures that are necessary to minimize those impacts.  Greater flexibility in the quantification of anticipated incidental taking could reduce the burden of developing and implementing biological opinions without any loss of conservation benefits.

More information on Improving ESA Implementation can be found online at

ESA news: policy clashes over energy issues, litigation over fish, and conflicts between listed species and the military


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Energy concerns have been at the heart of numerous recent policy debates over the implementation of the Endangered Species Act.  The Department of Interior's  efforts related to the dunes sagebrush lizard continue to generate controversy.  As reported in the Texas Tribune, the Texas House of Representatives recently approved a resolution calling on the U.S. Fish and Wildlife Service to rescind its proposal to bring the lizard under the Endangered Species Act.  Some New Mexico lawmakers agree.  See El Paso Times. Legislators fear the potential impacts of ESA-related requirements upon the energy industry.  But elsewhere, the Bonneville Power Authority is sometimes stopping the operation of area wind farms (offering hydropower energy instead) to respect regulatory and wildlife concerns, and to prevent the "overgeneration" of excess energy. See OregonLive.  But in other significant policy news, changes to the Department of Interior's policies regarding the meaning of a "significant portion of the range" will impact preble's meadow jumping mouse, reports theNew York Times.  

Meanwhile, the litigation drum keeps beating.  Right on schedule, the Center for Biological Diversity formally notified the National Marine Fisheries Service today that it intends to sue the agency for failing to protect Atlantic bluefin tuna under the Endangered Species Act. CBD's petition, originally filed with NOAA on May 24, 2010, alleges that the tuna faces extinction due to overfishing (see photo below from BrightHub of bluefin tuna for sale at Tsukiji Fish Market), habitat degradation, and the BP Deepwater Horizon oil spill.  (David Suzuki says we should stop eating the fish, too.) And the Rome News Tribune offered a helpful summary of the tri-state water wars between Florida, Georgia and Alabama.


The U.S. Military is also increasingly caught up in Endangered Species Act issues.  As the Tucson Citizen notes, the Center for Biological Diversity (CBD) has multiple disputes with the military over its effects on endangered and threatened species, particularly in Fort Huachuca in Cochise County southeast of Tucson, Fort Irwion in California’s Mohave Desert, and on Okinawa.  Military strikes are also not conducive to the well-being of the threatened Mohave ground squirrel, which makes its home in Edwards Air Force Base in California’s Mojave Desert.  See
Government Computer News.  And at Fort Bullis, the Army faces challenges with impacts to the golden cheeked warbler.  See San Antonio Express. But if proposed legislation to amended the Equal Access to Justice Act passes, then the U.S. military may not have to pay attorney's fees to the litigants. See Tucson Citizen.  And in California, some legislators are embracing the idea of an ESA exemption for salmon, smelt and the Sacramento Delta.  See San Francisco Chronicle.

And finally, the White House has made available the Department of Interior's Preliminary Plan for Retrospective Regulatory Review, and the document includes numerous recommendations related to the Endangered Species Act, including changes to: Critical Habitat Mapping, Conservation Agreements, State Roles In Listings, Critical Habitat Designations, Adverse Modification, Incidental Take Statements, and the interplay of FIFRA and the ESA.  Hat Tip to Steve Hall, Moderator of U.S. Endangered Species Act Practitioners on LinkedIn.

ESA in the news: WildEarth Guardians is (finally) letting FWS set (some) priorities, and worthy books and articles defend the ESA, but opposition still abundant.


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Maybe, just maybe, there will be a bit less ESA litigation in the future, thanks to a new agreement by WildEarth Guardians to limit its lawsuits, in return for a commitment by the Obama Administration to address candidate species and petitions to list other species.  See news coverage from High Country News, Business Week and Miller-McCune.  ESA blawg has previously emphasized the need for the Department of Interior -- not litigious citizen activists -- to control its own priorities.  See discussions of "unintended consequences" (2008) and "bulk petitions" (2010).  But the Center for Biological Diversity, firmly opposed to listing delays, refused to sign the agreement. See AP article

Still, there will never be an ESA litigation shortage.  In the Pacific, NOAA recently authorized the lethal take of sea lions (protected by the Marine Mammal Protection Act) in an effort to save listed salmonid species.  See NOAA Fisheries.  And in the Gulf of Mexico, NOAA continues to learn about the effects of the Deepwater Horizon oil spill on wildlife  (seeScience Daily and  Houston Business Journal). The U.S. Fish and Wildlife Service has its share of issues too; and  individual issues all over the nation involving the Endangered Species Act are generating pushback.  See Wyoming's Daily Journal (discussing the gray wolf)  Martha's Vineyard News (discussing the listed Imperial Moth), and Business Week (discussing New Mexico's dunes sagebrush lizard and its effects on energy development -- a particularly tough issue that could lead to the next time Congress repeals a species listing by budgetary rider.)  In an issue of mutual concern to both FWS and NOAA, Indiana's Hoosier Ag Today discussed the opposition to duplicative pesticide regulation.

With mixed messages abundant, as usual, is it any wonder thatVermont Public Radio asks whether the ESA has worked?  Conservation biologist Joe Roman, in his book Listed (cover photo below), would answer with a resounding YES, and makes a compelling case about the economic and ecosystem benefits of the Endangered Species Act.  Still, despite his book, and despite similarly inspiring New York Times articles about endangered species from coast to coast, the naysayers will always remain.  After all, as Mother Jones recently wrote, homo sapien may be hard wired to reject science when it opposes our values and viewpoints.  Indeed, even opportunities for success, like reintroductions, prove controversial.  See Alaska NBC2 (discussing potential for reintroduction of wood bison) andSalt Lake Tribune (discussing the black footed ferret).


Wolves, alligators, and crimes against critters.


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The Congressional delisting of the wolf, through a budgetary rider, provoked the expected controversy.  See Boston Herald and MongaBay.  Then again, as some readers have pointed out, but for the problems with wolf management in Wyoming, FWS would have delisted the species anyway.  Indeed, similar efforts to delist recovering wolf populations are underway in  the Great Lakes.  See AP.  And those delistings will be controversial, too.  See WDIO

In response to the controversy, some people will ask "why?"  The answer is that humans, animals and our ecosystems are all interconnected.  Indeed, according to Dr. Louis J. Guillette Jr., a professor of obstetrics and gynecology at the Medical University of South Carolina, alligators (and endangered crocodiles) have a lot more in common with humans than you might think, and the ways their bodily systems develop - or deform -- before hatching are a lot like the ways human babies grow in their mothers' uteruses.  See The Freshwater Society.  In fact, tiny, tiny doses of chemicals that can cause alligators to die before they hatch or to hatch with significant birth defects can have similar impacts on humans.  See also, ABC news.

Yet some people never learn.  A Louisiana father and son recently plead guilty to guiding illegal hunts for protected alligators.  See 7th Space.  A California man plead guilty in federal court in San Francisco to a charge of selling a stuffed American bald eagle. See SF appeal.   And Cole Brothers circus was recently fined for illegal sale of elephants.  See WWAY-TV.

Photo of an American crocodile at Everglades National Park available online at wikipedia.  Crocodiles were once found from Lake Worth to the waters in and around the Florida Bay. Most now nest in the Crocodile Lake National Wildlife Refuge in Key Largo, in the Everglades and on the berms of the cooling canals of the FPL Turkey Point Plant. Crocodiles prefer the quiet waters of coastal mangrove swamps where they are protected from onshore winds.  See also, FPL

Blame environmentalists, or blame Congress: either way, the wolf is delisted.


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The law is intolerant of politics, and politics is intolerant of the law.  When environmental advocates brought down yet another effort by state and federal governments to find a workable compromise to ESA implementation,  ESA blawg echoed the courts and warned that only a settlement would work. Some environmental groups, to their abundant credit, tried to forge a creative path with the Obama administration, but the Court rejected the settlement.  See ENS and New York Times.  So, right now, raw and intolerant politics is winning, wheras tolerance, the Endangered Species Act -- and maybe the wolf -- are all losing.

Photo by Wyoming Fish & Game Department from University of Wyoming.

Buried in the battle over our absurd budgetary mess (uh, has anyone ever thought about both increasing revenues AND decreasing expenditures?) was a little line that delisted the wolf as an endangered species.  Perhaps, as angry environmentalists insist, Congress has indeed overreached, and removed the science from the Endangered Species Act.  See Sierra Club and Washington Examiner. But it is also true that wolf populations have increased and that aggressive litigious environmentalists overreached, forcing bi-partisan Congressional delegations to act. See Montana's The Daily Inter Lake.

As a result of this budget proviso, expected to be signed by President Obama today, Montana and Idaho will resume state management of wolves, with public wolf hunting seasons, allowing people to shoot wolves that threaten livestock or pets.  See The Missoulian.  The delisting does not include Wyoming, whose wolf management efforts were previously deemed insufficient by the federal government.  See Billings Gazette.

Sadly, by effectively repealing the ESA as applied to canis lupus, Congress has opened the door to a whole new world.  See New York Times.  Whenever ESA implementation gets tough, whenever compromise is hard to forge, whenever science presents challenges, the easy option is Endangered Species Act repeal.

We've learned this lesson before.  When conflicts over snail darters and the Tellico Dam could not find compromises, Congress created new ESA exemptions.  Two decades later, the Clinton administration adeptly used the Habitat Conservation Planning process (to the dismay of some environmentalists).  See, e.g  Souza and Klyza, New Directions in Environmental Policy Making (2007).  We need to learn the lessons again.

Environmental policy, like democracy itself, necessitates compromise.  Compromise requires labor and intellect.  By comparison, an exemption buried in a budget is the lazy way out.  Sure, it solves the immediate problem.  But the extinction of endangered species, one Congressional act at a time, cannot be our long term solution.

ESA in the news: big ideas, big controversies...


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 A recent issue of YES! Magazine features provocative ideas about our animal-human relationships -- omnivore vs. vegan, the emotional lives of animals, legal rights for nature -- and asks whether saving endangered species can ultimately save human lives?  But government leaders obviously have their doubts.  In a matter of intense local interest, U.S. Representative Joe Baca (D-San Bernardino) proposed a bill to require the Fish and Wildlife Service to remove the Delhi Sands flower-loving flies (and any other endangered species for which the service doesn't have an accurate count) from the list of endangered species if the FWS can't show the fly population has increased since being put on the endangered species list. SeeRedlands Daily Facts.  But the cumulative sum of similar battles, all over the nation, over individual species led the Obama Administration to propose their own approach to escaping the rigors of the ESA.  Under a plan discussed in a House Appropriations subcommittee hearing, Congress may cap funding for the processing of new Endangered Species Act petitions.  Lack of funding could be a formidable defense that would yield more time for juggling its caseload, FWS maintains. See New York Times.  While the government has been increasing its use of "warranted but precluded" decisions on listing petitions, even those decisions produce litigation over whether the  Service properly set its own priorities.  See

ESA news: ongoing litigation over actions and inactions, and lawsuits over actions yet to be thought of...


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Lawsuits, as usual, dominated recent Endangered Species Act news.  Alaska filed suit challenging the designation by FWS of critical habitat for polar bears. See SitNews.  The Pacific Legal Foundation says critical habitat designations for green sturgeon will cause conflicts too.  See YouTube.  Plans to allow off-road vehicles in Florida's Big Cypress Preserve have led to a Notice of Intent to Sue based upon alleged impacts to Florida panthers and other species. See Sierra Club.  And the Ninth Circuit heard arguments on the delisting of the Grizzly bear. See AP.

While agency actions are the subject of much litigation, so too is agency inaction.  Increasingly, to the frustration of many environmental advocates, the federal regulatory agencies are exercising their discretion NOT to list species by relying upon the ESA's "warranted but precluded" concept, as was the case for the Flat tailed horned lizard (see LA Times). a Nevada butterfly known as the Mount Charleston blue (see Federal Register and Center for Biological Diversity).  In the case of the butterfly, FWS explained that nearly the entire range of the species is located on public lands managed by the U.S. Forest Service, "so habitats on these lands are not subject to large-scale development pressures that may occur on private lands."  Still, environmental advocates fear that the result of a failure to list a species will be more extinctions, like the recent declaration of the fate of the Eastern Cougar? See Scientific American.

Alexander Crowell poses with the famous Barnard Panther, which he shot on November 24, 1881 at Barnard, Vermont. This was likely the last eastern cougar killed in Vermont. (Photo from the Vermont Historical Society. Caption and photo from Northeast Region FWS.

Meanwhile, with the increasing attention placed upon the Endangered Species Act, interest groups have become more sensitive to the long-term potential for human-wildlife interactions and similar conflicts.  Environmentalists want to list the African lion, see Fact Sheet, but Safari Club International argues that responsible hunting of the species increases revenues for conservation efforts. See Field & Streams.  Skiers in Colorado are concerned that plans to eventually reintroduce wolverines into alpline locations could lead to unwelcome restrictions on human uses.  See Aspen Daily News.  Farmers are concerned that expanding the scope of the ESA to require consultations on pesticides will lead to new restrictions and decreased productivity.  See KFGO.  Energy advocates want new legislation limiting environmental review of new energy projects.  See NY Times.  Indeed, hostility to the ESA has grown to the point that the New York Times dubbed Republicans for Environmental Protection as "Endangered Species."

P.S.  How about this interview exchange between former Secretary of Defense Donald Rumsfeld and Talk Radio Conservative Hugh Hewitt, (recently published in The Atlantic):
   Hewitt: Now I want to start, since we’re at the Nixon Library, I’m going to get to Nixon. But before I do that, I once asked President Nixon in his retirement why he signed the Endangered Species Act, and he said well, it seemed like a good idea at the time. You co-sponsored FOIA, the Freedom Of Information Act. What were you thinking?
   Rumsfeld: It seemed like a good idea at the time.

ESA news: as go the wolves, so goes the ESA?


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The House of Representatives moves closer each day to large scale cuts in spending on environmental regulation, seeLA Times and the plan will affect implementation of the Endangered Species Act, especially as applied to wolves. See KXLF.  Asserting constitutional rights to bear arms, Tea Party activists support ESA reform, see Reuters, and the Democratic Governor of Montana, Brian Schweitzer, openly encouraged his state citizens to shoot wolves in outright defiance of the ESA. See KHQ.  "Get off your hind end in Washington, D.C., and fix the Endangered Species Act so it works in Montana," he told Fox News.

But dismantling environmental law is not the answer, says Treehugger.  As the non-partisan articles on Treehugger note, the ESA has a success story to tell too, and can be credited, in part, with the recovery of the wolf. even argues that impacts to elk in the Rocky Mountain ecosystems stem not from wolves, but from pesticides... also a subject of increasing ESA regulation.  Photo from the Gifford Pinchot Task Force.


ESA news: U.S. Supreme Court denies review of Endangered Species Act decisions, and Court question in polar bear strikes core issues, but potential legislation on attorney's fees may be bigger news


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Earlier this week, making 2011 look just slightly less controversial for Endangered Species Act practicioners. the U.S. Supreme Court denied two petitions requesting for review of how federal regulators and courts consider the economic impacts of "critical habitat" designations. See New York Times.  The decision leaves intact critical habitat designations for 8.6 million acres of the Mexican spotted owl habitat  in Arizona, Colorado, New Mexico and Utah, and  860,000 acres of critical habitat for four crustaceans and 11 plants in California and Oregon.

But yesterday, a U.S. District Judge in Washington, D.C. asked the tough questions that reveal the depth of disagreement over polar bears, ESA implementation, and the use of the law to regulate greenhouse gases.  Consider this excerpt from the Miami Herald article:

U.S. District Judge Emmet Sullivan... asked, what should be done when the primary threat to polar bears is the loss of their sea ice habitat?  "How do we fix that?" he asked Kassie Siegel of the Center for Biological Diversity, the lead lawyer for the environmental coalition that's seeking to change polar bears' status from merely threatened to endangered.

"Deep and rapid greenhouse gas reductions," Siegel said.  Her answer got at the heart of what environmental groups hope to do with their lawsuit: force the Obama administration to reconsider a rule that prohibits using the Endangered Species Act as a tool to regulate greenhouse gases.

Image from FWS available from Penn State

Despite the litigation news, a much more obscure legislative issue may prove far more significant in 2011.  Earlier this month, the House of Representatives moved forward with efforts to reform the Equal Access to Justice Act, the statute frequently invoked by environmental organizations to require the federal government to pay legal fees and costs when the groups file successful citizen suits against the government.  See  The floor debate, as excerpted below, was remarkable.

Proposing the amendment, Rep. Cynthia Lummis(R-WY) said, in part as follows: this law has been hijacked by certain groups who use it to sue and recover judgments. For example, there are 14 environmental groups that have recovered $37 million by filing 1,200 lawsuits for which they’ve recovered judgments and even legal fees under settlements with the Federal Government, thereby fueling the fire of suing the Federal Government over sometimes procedural issues.

Arguing against the amendment, and for the continuation of federal funding for successful citizen suits, Rep. George Miller (D-CA) said as follows: The salmon don’t have a lawyer. But the harm to the fisheries, the harm to the small fishermen, to the small boat owners, the people who go out and brave their lives in the Pacific Ocean. When the Federal Government makes decisions about water flows and the Federal Government makes decisions about timber sales and when the Federal Government makes decisions about construction on the dam, they have a right to be heard.

Striking a more cautious note, but still supporting the amendment, Rep. Mike Simpson (R-ID) said as follows: You could actually lose the case for what you are trying to do. It is the problem that good intentions have gone awry. And I will tell you that there are groups all across this country who have seen this as a way to fund their organizations, and we need to put a halt to it. Because what we’re doing is asking the people of this country to fund people to sue them. I don’t know who else does that. But on the other hand, I agree with the gentleman that we want those people that don’t have the ability or the resources to have a say in how public lands are managed, to have a say in that. But it has gone awry, and we need to put an end to it, and we need to reform the process.

But Rep. Ed Markey (D-Mass) still noted his concerns: This amendment is overbroad, to use a euphemistic term, in order to describe what its impact will be upon those who are the least powerful, and most agreed in terms of the impact in which the Federal Government has upon their lives as individual citizens.  As Rep. Markey also noted, the EAJA refoms had the potential to prevent people who were wronged by the government from recovering, including victims of atomic radiation, elderly Social Security recipients, veterans, and whistleblowers. And Mr. Markey concluded as follows: I rise just to make this very simple point so you all know what you’re doing. The law that this amendment wants to prevent funding for was a Ronald Reagan law. This is a law Ronald Reagan signed and put on the books, just so you understand. And of course the reason he put it on the books was that he sided with the little guy against the Federal Government. This is a way to make the Federal Government accountable. And recovery of attorneys’ fees and legal expenses is needed to ensure that the people can keep their own government accountable when they, the smallest of the small, are having the Federal Government intrude itself into their lives and bringing tremendous harm to the health and well-being of the families in any particular community in our country.

The amendment passed 232 yes to 197 no.  See THOMAS.

ESA news: Montana House votes to nullify the ESA, Sacramento Delta, and owls vs. owls


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The stakes get higher and higher.  This week, in Washington D.C., Judge Sullivan will hear oral arguments on the polar bear litigation. See Anchorage Daily News.  But all over the nation, even legislators are talking about delisting of species.  Howling at the controversies over wolf protections, the Montana House of Representatives voted to repeal the ESA. See BoiseWeekly and NECN and New West.  Arizona may not be far behind.  See YumaSun.  Maybe even Wisconsin?  The state Department of Natural Resources says wolves are causing more problems for Wisconsinites. See Chicago Tribune.  But in Texas, the Edwards Aquifer Authority, a governmental entity that exists, in part, to manage the challenges associated with the ESA, is seeking flexibility from the otherwise applicable framework of Texas state water law. See MySanAntonio.

While CaliforniaProgressReport calls for nuance in managing the region's challenges, the Pacific Legal Foundation prefers the blunt instrument. Last week, the Ninth Circuit heard oral argument on the constitutionality of the ESA, as applied to the decision to cut off water use in the delta to protect the smelt.  And other news from the Sacramento Delta includes this interesting perspective from Investor's Business Daily on the cost of green.  And "for what?" ask some, including the author of this San Francisco Chronicle article noting that "Delta fish may be too far gone to save."

The ESA has moral costs too, as John Platt reveals in this Scientific American article discussing whether we should shoot barred owls to save spotted owls.  But the owl needs help, because despite the ESA, populations are declining.  See Statesman Journal.  See also, The Smithsonian.

ESA litigation in 2011: it could be a very big year.


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In a lawsuit of nationwide scale, the Center for Biological Diversity sued the U.S. Environmental Protection Agency under the Endangered Species Act, alleging that EPA failed to consult with federal wildlife agencies regarding the impacts of hundreds of pesticides upon more than 200 endangered and threatened species. See Press Release.  CBD views widespread pesticide use as Silent Spring Revisited.  As the lawsuit states: "EPA must register and authorize pesticides before they can be used. Once in the environment, pesticides impact species through acute and chronic effects, and contamination of their habitats. Absent EPA’s registration and oversight of pesticides, they could not be used and would not be negatively impacting listed species. EPA’s failure to ensure that its actions regarding pesticides do not impact endangered species and their habitats harms Plaintiffs’ members’ interests in the species. If EPA engaged in consultation as required, the Service would detail how the pesticides are affecting listed species and their habitats and, if necessary, would suggest reasonable and prudent alternatives to protect the species. 16 U.S.C. § 1536(a)(3)."   Importantly, this lawsuit could trigger a settlement with EPA, FWS and NOAA, affecting, in turn, nationwide agricultural operations. See KFGO.  In fact, in litigation over pesticide consultations in the Pacific Northwest, CBD obtained relief requiring NOAA to review 37 regionally used pesticides and evaluate their effects upon salmonid species. See NOAA.

While CBD's lawsuit is just beginning, two other ESA cases may be about to reach a dramatic end, with petitions for certiorari pending before the U.S. Supreme Court.  First, Arizona Cattle Growers’ Ass’n v. Salazar, Docket: 10-454, asks (1) whether the Fish and Wildlife Service (FWS) was required to analyze and consider all of the economic impacts that result from designating a particular area as a "critical habitat" under section 4(b)(2) of the Endangered Species Act, including impacts that also may be related to the species being listed as "threatened" or "endangered"; and 2) whether it is lawful for a court to substitute its own rationale for the rationale provided by the FWS to affirm the agency's determination that a particular area, designated as a "critical habitat," is occupied by a threatened or endangered species. Relatedly, Home Builders Ass’n of Northern California v. United States Fish and Wildlife Service, Docket: 10-605, asks whether, under section 4 of the Endangered Species Act, the government must analyze all of the economic impacts of a “critical habitat” designation (regardless of whether the impacts are co-extensive with, or cumulative of, other causes), or instead only those impacts for which “critical habitat” designation is a “but for” cause. See SCOTUS blog, petition of the day.

Finally, it was the end of the road in Southwest Center for Biological Diversity v. Bartel, Case No. 06-56851, 2011 WL 148785 (9th Cir. Jan. 18, 2011), in which Intervenor-Appellants from the building industry sought to appeal the district court's injunction barring “pending and future development projects” that might affect seven species found in San Diego's “vernal pool habitat.”  The district court had invalidated parts of an Incidental Take Permit (“ITP”) granted to the City of San Diego in July 1997.  However, on April 20, 2010, the City relinquished portions of the ITP covering the vernal pool species, and one month later, the Service cancelled those portions of the ITP.  Rejecting the argument that intent to apply for a new ITP could keep the litigation alive, the 9th Circuit held that "Because the relevant portions of the ITP no longer exist, it is unclear how there remains a live case or controversy. The City, the Service, and Intervenors agree that the action is moot."

ESA news from the Bay-Delta: Judge Wanger rejects current biological opinion, while vocal constituents reject the Bay Delta Conservation Plan alternative


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DELTA SMELT CONSOLIDATED CASES, Memorandum Decision Re; Cross Motions for Summary Judgment, (E.D.Cal., Dec. 14, 2010)(Wanger, J.)
Case Nos. 1:09-cv-00407 OWW DLB, 1:09-cv-00480-OWW-GSA, 1:09-cv-00422-OWW-GSA, 1:09-cv-00631-OWW-DLB, 1:09-cv-00892-OWW-DLB

BACKGROUND: These consolidated cases arise out of the continuing war over protection of the delta smelt (Hypomesus transpacificus), an ESA-threatened species, and associated impacts to the water supply for more than half of the State of California. The United States Fish and Wildlife Service’s (“FWS”) issued a new delta smelt biological opinion on December 15, 2008 (“2008 Smelt BiOp” or “BiOp”). This BiOp concluded that proposed Central Valley Project (CVP) and State Water Project (SWP) operations are “likely to jeopardize the continued existence of” the delta smelt and “adversely modify” its critical habitat.   The BiOp includes a required Reasonable and Prudent Alternative (“RPA”) designed to allow the projects’ continued operations without causing jeopardy to the species or adverse modification to its critical habitat. The RPA includes operational components designed to reduce entrainment of smelt during critical times of the year by controlling (limiting) water exports from the Delta by the Projects.

CONCLUSION: It cannot be disputed that the law entitles the delta smelt to ESA protection. It is significant that the co-operator of the Projects, DWR, in its endeavors to protect a substantial part of the State’s water supply, opposes as unjustified and based on bad science some of the RPA Actions. It is equally significant that despite the harm visited on California water users, FWS has failed to provide lawful explanations for the apparent over appropriation of project water supplies for species protection. In view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs. A court is bound by the law. Resource allocation and establishing legislative priorities protecting the environment are the prerogatives of other branches of government. The law alone cannot afford protection to all the competing interests at stake in these cases.

EXCERPT (one tiny piece of a 225-page opinion ): Plaintiffs complain that the “Justification for Flow Prescriptions in Action 1” section does not represent the best available science because it is based upon analyses of gross (or “raw”) salvage (i.e. the absolute number of fish salvaged over a given time period). The use of raw salvage data, as opposed to salvage data scaled to population size, is problematic because raw salvage figures do not account for the size (or relative size) of the smelt population.  The BiOp admits as much, and concedes that the analysis assumes that “as the population of Delta smelt declined, the number of fish at risk of entrainment remained constant.” BiOp at 349. Considering raw salvage numbers alone provides no means of distinguishing an event in which 10,000 fish are salvaged out of a population of 20,000 from an event in which 10,000 fish are salvaged from a population of 20 million...  FWS nowhere explains its decision in the BiOp to use gross salvage numbers in Figures B-13 and B-14, and does not explain why it selectively used normalized salvage data in some parts of the BiOp but not in others. This was arbitrary, capricious, and represents a failure to utilize the best available science in light of universal recognition that salvage data must be normalized. This significant error must be corrected on remand.

SEE ALSO: New York Times, San Francisco Chronicle, and LA Times.

KEITHINKING: While Judge Wanger's decision reflects judicial rejection of the current state of affairs, ongoing efforts to find creative new solutions have also encountered obstacles and rejections.  The Bay Delta Conservation Plan, a federal and state initiative, represents an attempt to redefine the regional water distribution systems in a manner that also protects native species for the next 50 years. The grandiose Plan even proposed a massive tunnel, moving Sacramento River waters around the delta region while avoiding young delta smelt from being drawn into the surface water pumping stations. See the Highlights of the BDCP (Dec. 2010).   Potential costs for the proposal exceed $14 billion over 10 years, and billions more thereafter.  See FAQs.  And criticism of the plan is intensifying.  See New York Times.  In a press release, four leading conservation groups declared the Plan's documents "deeply flawed, incomplete, and disappointing."  Meanwhile, the President of the Westlands Water District, an important project participant, constituent, and funding source says “We were sold a bill of goods once again by the federal government.”  

Judge Wanger said it: "The law alone cannot afford protection to all the competing interests at stake in these cases."  And unfortunately, with the Bay Delta Conservation Plan in crisis, the competing interests are refusing to compromise.  So with the judiciary unhappy, the executive branch failing, and the California legislature equally unlikely to find an acceptable compromise, where do we go from here?  

Together, the Sacramento-San Joaquin River Delta and San Francisco Bay comprise the largest estuary on the West Coast. The Bay-Delta is the hub of California’s water-delivery system, a source of water for more than 20 million Californians and for millions of acres of farmland in the San Joaquin Valley, and habitat for hundreds of species of wildlife, including the threatened Delta smelt, which spends its entire one-year lifespan in the estuary.  In addition, winter-, fall- and spring-run salmon migrate through the Delta on their way to spawn in Central Valley rivers.  Map and caption information from USGS.

ESA news: turkeys not endangered, but big news on bears and wolves, and more status review litigation. (Happy Thanksgiving!)


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ALASKA.  It's official. FWS announced the final designation of 187,000 acres of polar bear critical habitat in Alaska. See coverage from Alaska Public Radio Network Alaska Gov. Sean Parnell said the state is considering a legal challenge in opposition.  See Alaska Dispatch.  Soon, the Obama Administration will also have to decide whether the bear is a threatened species, or an endangered one, forcing further consideration of how the ESA will be used, or abused, as a tool in the policy struggle over global climate change. See LA Times.  And the state has many more ESA issues beyond the great white bears.  A record amount of chinook salmon bycatch by the Fall 2010 trawl fleet in the Gulf of Alaska pollock fishery triggered another consultation under the Endangered Species Act. See Alaska Journal of Commerce. The Center for Biological Diversity plans to sue over the failure to consult on the impacts of oil dispersants upon Alaska wildlife including polar bears, Cook Inlet beluga whales, Steller sea lions and other imperiled species.  See Business Week.   But even when doing good deeds, Alaska seems frustrated with the federal government and the ESA, as suggested by the Alaska Department of Fish & Game when it announced its target date of spring 2012 for releasing a reintroduced population of wood bison into lower Innoko River country in the western Interior was waiting on federal protection and hinges on federal rulemaking to create a “nonessential experimental population” exemption under section 10(j) of the Endangered Species Act.  Still, Alaska's official disagreements over the ESA are nothing new. See, e.g. Oregon Live's piece on former Governor Sarah Palin's record on the ESA and climate change.)  But perhaps the recent announcement that Gov. Sean Parnell has appointed current state Attorney General Dan Sullivan as Commissioner of Natural Resources suggests a new focus by Alaska on the laws, and lawsuits, affecting its environment. See Homer News.

WOLVES.  As anticipated here on ESA blawg, legislation is churning to deal with the never-ending cycle of wolf litigation. The concept: Congress removes the wolf from federal endangered species management responsibilities, and leaves the issue to the states. See The Salt Lake Tribune.  The bills, however, are unlikely to move during the remainder of this current Congress.  See Idaho Statesman. Disturbing though such a solution seems, litigation is proving just as bad a way to solve this complex issue.  As the Greater Yellowstone Coalition (an environmental advocacy group) recognized, two recent contradictory wolf decisions from federal courts in Wyoming and Montana indicate "it is time to move the wolf debate out of the courts."  In Montana, U.S. District Court Judge Donald Molloy ruled that the federal government improperly removed the endangered status of the wolf in Montana and Idaho, and ordered that the species remain listed in Montana, Idaho and Wyoming.  See Jackson Hole News and Guide.  Judge Molloy held that, as a matter of law, and based upon an interpretation of the provisions of the Endangered Species Act, Montana and Idaho could not be treated differently than Wyoming.  But U.S. District Court Judge Alan B. Johnson's opinion (from Cheyenne, Wyoming) held that the federal government’s rejection of Wyoming’s wolf plan (which designated nearly 90 percent of the state as a predator zone where wolves could be shot on sight) was improper.  See Powell Tribune.  The two opinions cannot be reconciled.

The Wenatchee Mountains checker-mallow (Sidalcea oregana var. calva) is an endemic plant found only in mid-elevation wetlands and moist meadows within Chelan County in eastern Washington State. This plant is currently known from only five populations. The largest population has an estimated 11,000 plants and the remaining 4 populations range in size from 8 to 300 individuals. The U.S. Fish and Wildlife Service listed S. oregana var. calva as endangered on December 22, 1999. Critical habitat was designated for this species on September 6, 2001. Caption and photo from U.S. Forest Service.

STATUS REVIEW LITIGATION?  Status reviews for species may become the newest version of ESA litigation. Yesterday, the Pacific Legal Foundation announced that one day after it filed a one day after a lawsuit alleging that FWS failed to meet its statutory responsibilities related to the northern spotted owl, Oregon silverspot butterfly, showy stickseed, and Wenatchee Mountains checker-mallow, the U.S. Fish and Wildlife Service agreed to review whether the four Washington State species should remain on the Endangered Species Act list.  See PLF.  Given the timing of the announcement, however, it seems unlikely that PLF was actually the catalyst for the action, and more likely that something was already in the works.  (After all, FWS also announced FWS five-year reviews of additional species in Oregon, California, and Hawaii.)

The ESA and Election Day: wolves, wood storks, woodpeckers, water and more.


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Election Day is tomorrow, and perhaps the Endangered Species Act will never be the same.  As reported by Alaska public broadcasting, the positions of Democratic U.S. Senate candidate Scott McAdams on fisheries policy and the Endangered Species Act could prove hugely important to the voters.  But Alaskans are not alone.  All over the nation, the ESA dialogue and debate continues.  Some people demand outright repeal, like Jonathan DuHamel in the Tuscon Citizen.  Some seek narrowly tailored exemptions, and in fact, U.S. Senate candidates are discussing the merits of an ESA exemption for water users in the Central Valley of California.  See PBS Newshour.  The exemption approach, however, has its critics, as noted in a Kansas City InfoZine story berating the laws excusing U.S. Armed Forces military efforts from ESA compliance.  And other voices insist on more protections, just as the Sierra Club argues for the polar bear.  All of the story lines are simplistic, but the science and solutions are not.


Wolves vs. hunters.  Wolves have a right to eat, says Kirk Robinson, Executive Director of Western Wildlife Conservancy in the Salt Lake Tribune.  While Utah hunters seek a Congressional rider to exempt the species from the Endangered Species Act, Robinson argues that "there is not a single shred of science to support these bills or that their passage would set an egregious precedent...  and there is no other species of animal on the continent capable of occupying the supremely important role of wolves in maintaining ecosystem health."   Meanwhile, Idaho Gov. C.L. "Butch" Otter told the Missoulian that the wolf reintroduction program was "a tragic example of oppressive, ham-handed 'conservation' at its worst... Idahoans have suffered this intolerable situation for too long, but starting today at least the state no longer will be complicit."  Still, in Montana, FWS is refusing state efforts to affirmatively approve wolf hunting.  See New York Times.

Wood storks v. developers.  In Florida, developers want to delist the wood stork, arguing that it has passed its recovery marks.  Environmental advocates, believing the increases to be temporary, want to maintain the listed  species of the species.  See Palm Beach Post.  

Energy vs. sage grouse.  Wyoming has tried to proactively conserve sage grouse by restricting development on state-designated "core areas," but the strategy is "a continual work in progress," says Republican Matt Mead, perhaps the states next Governor. But according to the New York Times, quoting energy experts, "painful choices" lie ahead. "The pain, at least for economic developers, is a prohibition on wind turbines and associated development within core sage grouse areas, which directly affects renewable energy prospects in the south-central part of the state."

Climate change vs. polar bears.  A recent story in Advocacy for Animals, by Encyclopedia Brittanica, deems the polar bears the new canary in the coal mine, while opponents of the threatened species listing, including the Pacific Legal Foundation, call the bear a "thriving species" with population numbers reaching "the highest total in history." See LA Times.  U.S. District Judge Emmet Sullivan, however, wants more information, and recently ordered the Interior Department to clarify a George W. Bush administration decision that polar bears were merely threatened rather than in imminent danger of extinction.

Emerging issues in aquatic environments.  Protected species are becoming a new policy proxy for the pollution management and habitat destruction in freshwater and marine ecosystems.  Having successfully sued the U.S. Fish & Wildlife Service to act, the Center for Biological Diversity today celebrated the decisions to list the Georgia pigtoe mussel, interrupted rocksnail and rough hornsnail as endangered under the Endangered Species Act, and a related decision to protect 160 miles of their river habitat in Georgia, Alabama and Tennessee. Sadly, FWS also denied protection to Mississippi's Bay Springs salamander, declaring it to be extinct.  A blog in the New York Times, and many readers, express concerns about the future of the recently listed Atlantic sturgeon.  Similarly, the Sun Sentinel reports that "one-third of world's sharks, skates and rays face extinction" and notes that commercial fishing is blamed for much of decline.  Smalltooth sawfish are already listed, and hammerhead numbers may be dwindling.  More listings of oceanic species, and more regulation of the fisheries, may prove inevitable.


Lastly, a good news story.  In South Florida, scientists are working to introduce ESA-listed species onto state-owned lands.  Last week, biologists released 10 red-cockaded woodpeckers at the DuPuis Management Area as part of a long-standing partnership between the South Florida Water Management District (SFWMD) and the Florida Fish and Wildlife Conservation Commission (FWC) to build the population of these important birds and benefit overall wildlife.  See SFWMD.  

Endangered red-cockaded woodpeckers are an unusual species.  They are the only woodpecker species to excavate nest and roost sites in living trees, and unlike other woodpeckers, they are social, living in small family groups.  The nests they construct play a vital role in the web of life in southern pine forests, and they are considered a “keystone” species by the U.S. Fish & Wildlife Service (USFWS) because the cavities they construct in pine trees are used by a host of other animals, contributing to the richness of species in the pine forest. According to the USFWS, at least 27 species of vertebrates such as insects, birds, snakes, lizards, squirrels and frogs have been documented using woodpecker cavities. Photo from Steve Morello, University of Florida.. See also the RCW photo gallery from SFWMD.  (Full disclosure: I am a SFWMD employee.)

Alaska: America’s Endangered Species Act battleground


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The Endangered Species Act may be one of the most powerful environmental laws ever enacted, but Alaskans don’t like it.  The ongoing disagreements over ESA implementation in Alaska commonly appear on the pages of ESA blawg.  The battles are reaching a new fevered pitch, with the Alaskan governor making it a major part of his workload.  In a recent article, Jill Burke dug deep on the subject, noting that Alaska is even forming coalitions with other states to team up against perceived federal overreaching.  See Alaskan Dispatch.   Another recent mainstream news article discussed the ongoing battle of Alaska vs. sea lions. See Newsweek. Interestingly, in the grand scheme of the ESA, Alaska does not have all that many listed species, with 14 endangered species, 5 threatened species, and 10 species in various stages of consideration for protection under the ESA.   See Alaska Department of Fish and Game pages. But the habitat for many of these species – such as the polar bear – cover very broad areas and ecosystems, making the effects of species listing in Alaska particularly widespread.

Outside of Alaska, however, perspectives are very different.  When Alaska announced its opposition to the listing of the polar bear, Andrew Wetzler, Director of the NRDC Endangered Species Project, was quoted as saying that “The state of Alaska's response is disappointing, but certainly no surprise. They have taken their cues from industry every step of the way.”  See Center for Biological Diversity press release. And this week, California’s largest legal news provider, named Kassie Siegel one of California’s 10 most influential lawyers of the decade.  See The Daily Journal. To the obvious dismay of many Alaskans, Ms. Siegel earned her honors for her work in getting ESA protections for the polar bear, the first mammal protected because of threats from climate change.  

The dueling perspectives provide interesting insights into the controversial nature of the ESA.  Alaskans resent the intrusions and perceived arrogance of outsiders, while those people in turn see Alaskans as irresponsibly taking the state’s natural resources bounty for granted.

Photo from U.S. Fish & Wildlife Service, Alaska Region

Photo from U.S. Fish & Wildlife Service, Alaska Region

ESA news: up and down and litigation all around...


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Another typical week of up-and-down and litigation-all-around news related to Endangered Species Act implementation:

ALASKA GOES ON OFFENSE.  The Alaska Dispatch reports that the state has kicked off an "all-out fight with the feds" over alleged abuses of the Endangered Species Act. See Alaska Dispatch.  In a formal petition, Alaska, Oregon and Washington State even asked for Steller's sea lions to be delisted.   See Seattle Times.  And with global climate change, Alaska has much at stake.  As the Environment News Service explained, "Arctic Warms, Sea Ice Shrinks, Extinction Risk Grows," or as the New York Times put it, "Melting Ice Turns 10,000 Walruses Into Landlubbers."

BLUEFIN TUNA.  The National Marine Fisheries Service's announcement that it was considering the listing of bluefin tuna pleased the Center for Biological Diversity who filed the petition to list the species, but the Maine Congressional delegation, including Senator Olympia Snowe, expressed concerns that American fishermen are bearing the cost for other countries' over-exploitation.  See Maine Public Broadcasting Network.  They have a point: Japan’s blue fin tuna imports alone account for three-fourths of the global trade in the highly prized fish. See IPSnews and the New Nation (from Bangladesh.  

NORTHERN SPOTTED OWLS.  Despite 20 years of forest protection, the Northern Spotted Owl remains a species in decline, says the Vancouver Sun.  But in Oregon, a new Safe Harbor Agreement is in place.  Under its provisions, private forest landowners can manage their land for sustainable, profitable timber harvests while promoting habitat for the threatened northern spotted owl, and receive assurances protecting them fron future ESA enforcement activities, and compensating them for enrolling forests in permanent easements.

SPRAGUE's PIPIT.  The U.S. Fish & Wildlife Service's recent "warranted but precluded" decision on the Sprague's pipit earned publicity, but little support.  “The Sprague’s pipit continues to plummet, with no rescue in sight from the federal government,” said Nicole Rosmarino, wildlife program director with the Colorado-based environment group WildEarth Guardians, to the Montreal Gazette.  

OZARK HELLBENDER SALAMANDERS.  The Ozark hellbender lives only in southern Missouri and northern Arkansas.  Once common in the Ozark Mountains' streams, the salamander reached up to 2 feet in length.  See St. Louis Today.  FWS has proposed the listing of the species, see Federal Register.  

WOLVES.  Wisconsin and Minnesota believe that the best available scientific information will eventually lead to the delisting of the wolf in the Great Lakes region.  See Milwaukee Journal Sentinel.  But with many people frustrated by the issue, and the neverending ineffectiveness of ongoing litigation, Montana Congressman Denny Rehberg is taking a different path: he proposed an ESA amendment to prohibit the “endangered” designation for Grey Wolves in Montana and Idaho. See NBC Montana.

LISTING AND DELISTING PETITIONS.  The Sierra Nevada red fox could soon be the subject of a new CBD listing petition. "It looks like it may be an excellent candidate for listing," Lisa Belensky, senior attorney with the Center for Biological Diversity, said in an interview Tuesday. "We're considering it." See Miami Herald.  The California Mountain yellow-legged frogs are probably not far behind in CBD's plans. See CBD.  But elsewhere in the state, the Pacific Legal Foundation filed papers Thursday with FWS petitioning for the removal of the valley elderberry longhorn beetle from the federal endangered species list. See Sacramento Business Journal.  While California received much of the petitioner's attention, a few other states have ESA debates emerging.  The Center for Biological Diversity says the Bicknell's thrush needs protection due to climate change in its coniferous forest habitats in the Adirondacks, New England and eastern Canada. See Vermont Public Radio.  CBD also filed petitions to list Coleman's coral root orchid, an Arizona plant species.


And last, but not least, a worthy read from Delmarva Media Group, an article by Wallace McKelvey about the endangered seabeach amaranth, a rare plant rediscovered, but still in dire straits, in Delaware.

Seabeach amaranth is wind and self pollinated. Seed production begins in July or August and reaches a peak in most years in September. Wind, water, and wildlife serve as seed dispersal mechanisms. The species is found on sandy, sparsely vegetated beaches between the high tide line and the toe of primary dunes.  Seabeach amaranth populations are highly dynamic, with numbers of plants often fluctuating dramatically from one year to the next.  Caption info and photo from Chincoteague National Wildlife Refuge.  According to Helen Violi, an ecologist at the Assateague Island National Seashore, the plan serves as an umbrella species. "If you protect the amaranth, you also end up protecting many other species that are also endangered or threatened because of the sensitivity of that habitat." See Ecologists race to save beach plant

Bulk petitions: breaking the Endangered Species Act, a few hundred species at a time? (Updated)


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With each new petition to list a few hundred more species as threatened or endangered, environmental advocates risk the destruction of one of their most beloved statutes.  By overburdening federal agencies, and outraging opponents, excessive petition and litigation tactics threaten something else: the rewriting of the Endangered Species Act (ESA).

Some scholars have estimated that the ESA currently protects less than nineteen percent of plant and animal species at risk of extinction.  See, K. Mollie Smith. That frustration, in turn, has helped create enormous pressure to litigate over the ESA, and to use its citizen participation tools in an effort to force greater species conservation.  For example, in recent years, environmental groups sent petitions to list hundreds of species to the biologists at the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NOAA Fisheries).  The Center for Biological Diversity sent FWS a Petition to List 404 Aquatic, Riparian and Wetland Species from the Southeastern United States (see ESA blawg) and sent NOAA Fisheries a separate petition to list 83 species of coral (again, see ESA blawg).  WildEarth Guardians sent FWS a petition to list 475 imperiled plant and animal species across the American Southwest, (see Federal Register) and sent a separate petition seeking Federal Protection for 681 Western Species (see press release and Federal Register.)  Four petitions, one thousand six hundred forty three species.  

Raw numbers aside, these tactics -- call them "bulk petitions" -- generate substantive, procedural and economic consequences.

First, the petitions create substantive burdens for the agencies.  In the easiest of cases, the regulatory agencies will be able to respond in a systematic manner, rejecting the listing of many or all of the petitioned species because the petition fails to meet certain procedural thresholds. For example, the petition might rely upon an inapplicable international standard or unreliable or outdated information, or it might contain insufficient information on many of the species, enabling the FWS or NOAA Fisheries to reject the petition because it does not "present substantial information indicating that the petitioned action may be warranted." See ESA Sec. 4(b)(3)(B), and FWS flow chart.  Such petitions waste agency time and resources simply to make a point.  But in other cases,the petitions might contain sufficient information to overcome that initial standard, thereby triggering a duty to review whether each species is threatened or endangered.  That analysis, in turn, requires review of the best scientific available information available (and a notice and comment process!) to determine how each of the five factors for listing apply: (1) present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or man-made factors affecting its continued existence.  This type of substantive analysis is difficult for a single species; but when 1643 species are involved, for 5 factors, mistakes and inadequacies will occur.

Second, compounding the substantive problems, the petitions create procedural burdens, because FWS and NOAA Fisheries lack discretion to prioritize the petitions (nevermind attending to the needs of already listed species!)  The petitioners had as long as they wanted to create their petition.  But once the FWS or NOAA Fisheries receives the petition, it must respond, within no more than twelve months, based on the deadlines in the ESA Sec. 4(b)(3)(B).  See also, Petition Management Guidance (1996).  For each and every species in the petition, one of three outcomes must occur: either the petition is rejected for a species as inadequate, the species is listed, or the listing of the species is considered warranted but precluded.  The clock ticks relentlessly, and no matter what other competing priorities exist, the expert discretion of our agency biologists gives way to the demands of intemperate petitioners.  Worse yet, with petitions offering lists of hundreds of species, the agency's face a terrible choice: take time to do it right, and get sued for taking too long, or rush to make decisions, and face the potential risk of being sued for making errors.

Third, pursuant to the ESA's citizen suit provision, the lawsuits that follow the unanswered petitions have economic consequences.  The taxpayer already pays for the FWS and NOAA review (whether late or not.)  And of course, once the litigation begins, the taxpayer pays for the Justice Department and the judiciary, too.  But adding insult to injury, Congress has created a process where the taxpayer pays the petitioners for filing their lawsuits.  Most of the time, under the "American rule," litigants pay for themselves.  But some statutes, including the ESA, have "fee-shifting" provisions.   As explained in the ESA, Sec. 11, the court "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate."  And unfortunately, through case law, the courts have decided that payment is "appropriate" whenever a litigant achieves even just a partial victory, or merely serves as a "catalyst" for action.  In theory, these types of statutes and legal doctrines were created to help individual taxpayers act as "citizen attorney generals" to help ensure that the government does its job, enabling them to be compensated when they were proven right.  But the multi-million dollar litigation organizations such as the Center for Biological Diversity and Pacific Legal Foundation do not deserve taxpayer funding for their lawsuits.  (In 2008, CBD had $9.1 million in revenues and net assets of $6.4 million, PLF had $10.1 million in revenues and $10.2 million in net assets. See Charity Navigator.)  The fee shifting process adds nothing, except debt, to the national dialogue. See, ESA blawg (2010).

These three concerns aside, some members of the environmental community justify these bulk petition tactics, and their consequences, by labeling the President, Secretary or decision maker (or anyone else who disagrees with them) as unenlightened, ignorant, or worse.  They profess that the government fails to act in times of biological crisis, insist that the extinction of countless species is imminent, and declare that without their push for action, nothing at all happens.  See CBD and Newsweek. Their opponents, in turn, deem the environmental advocates to be irresponsible extremists, deluded into "sky-is-falling" worry without sufficient facts, and otherwise unwilling to acknowledge property rights or the economic consequences of the green agenda.  See PLF.  The environmentalists then respond to their naysayers, tarnishing them as rich or selfish polluters and resource exploiters who only want to preserve the status quo. And so on, and so on. To some degree, everyone may even be right.  But none of the rhetoric, none of the posturing, none of the fundraising, and none of the litigation will change the realities.  The advocates have taken over the priorities, the agencies have lost control, and the taxpayers -- as well as the species -- suffer.  The state of the Endangered Species Act is precarious, because lawsuits have become a business model. See ESA blawg (2008).  

In response to all these concerns, some future Congress might decide that enough is enough.  As a starting point, some lawmakers might even encourage the end of bulk petitions by limiting petitioners to a single species at a time.  But sadly, the consequence of such a rule would be predictable: in lieu of the four petitions discussed above, 1643 "separate" petitions would be filed (maybe even by 1643 "separate" people).  Meanwhile, worthy multi-species petitions would be needlessly inhibited.  So, with that sad truth swallowed, I suggest that whenever ESA reform does finally happen, five changes should occur to the petition process.  First, twelve month deadlines for agency review should only apply to the decision as to whether or not a species warrants emergency  listing -- and the need for an emergency listing could be expressly defined, creating a higher standard that dissuades litigation over insufficiently detailed bulk petitions, and that enables the agency to quickly reject inadequate petitions.  Second, any right to sue for inaction should apply only when the inaction exceeds a much longer period: perhaps five years (one year before the statute of limitations might otherwise apply.)  This longer period of time would allow the agencies to create internal priorities -- and yes, even to acknowledge political influences.)  Third, no matter how long the agency delays its review of a petition, the deadline should not create strict liability for a deadline violation; the ESA should allow the agency to explain any reasonable delay.  (For example, in Telecommunications Research & Action v. F.C.C., 750 F.2d 70, 79-80 (D.C.Cir.1984) the court described a six-factor test for evaluating unreasonable delay.)  Fourth, the litigation incentive should be removed, and the right to be compensated by fee-shifting provisions should be severely curtailed (with a capped dollar amount) or eliminated. (See ESA blawg (2010)).  Fifth, and last, but certainly not least, with the agency discretion to control the process restored, and far less money spent on litigation, Congress should ensure that the listing process is adequately funded.

Although the Endangered Species Act protects over 1900 species, the statute is certainly not perfect.  Its protections for listed species can be insufficient, and its many requirements consume the implementing agencies' time and attention.  But these limitations demonstrate the value of a workable listing petition process, because knowledgeable citizens and qualified scientists can play an important role in the identification of threatened species and the establishment of needed statutory protections -- before it's too late for the species.  The bulk petition process, however, goes much too far.  Thoughtful environmental advocates should recognize that a moderately and partially helpful ESA is better than no ESA at all.


Postscript.  The abuses of the listing petition process is hardly a new topic.  It was the subject of U.S. Senate hearings in 2004, see Environment and Public Works, and the National Governors Association also called for reform.  See The Heartland Institute.   And sadly, all of that Congressional dialogue came from anti-regulation industry advocates.  Nevertheless, the recent petitions are elevating an old concern to new plateaus, and will expand opposition to the perceived abuses of the ESA.  At its June 2010 meeting, the federal Marine Fisheries Advisory Committee addressed this issue, including the petition to list 83 coral species.  The group, consisting of a broad array of stakeholders, including fishermen, academics, environmental groups (and me, the author of this blawg), unanimously adopted the following statement: "MAFAC notes that a thorough scientific analysis takes time, and expresses its concern that some petitions to list species -- such as a recent petition to list 83 species of coral -- may not be adequately responded to within the statutory timeframes of 90 days (for an initial determination) or twelve months (for a final determination). MAFAC also notes its concerns that the deadlines associated with this petition process, as well as the associated litigation and court orders, can, at times, limit the full exploration and exercise of NMFS' scientific expertise and also renders NMFS unable to meet its existing priorities. For example, deadlines associated with listing petitions for new species can interfere with existing efforts to develop and implement recovery plans for species already listed. To the extent that the ESA petition process requires a deadline for NMFS to respond, MAFAC encourages NOAA to ask Congress to consider whether alternatives such as an “unreasonable delay” standard, as included in the Federal Administrative Procedure Act, would be more appropriate."  

One final note: In August 2010, the Center for Biological Diversity filed a more restrained petition, seeking to list four mountainous species based on the alleged effects of climate change, including the ‘I‘iwi (or scarlet Hawaiian honeycreeper, pictured below), the Bicknell’s thrush, the White-tailed ptarmigan, and the San Bernardino flying squirrel.  

The I'iwi or Scarlet Hawaiian Honeycreeper (Vestiaria coccinea) is a Hawaiian "hummingbird-niched" species, of the Hawaiian honeycreepers, subfamily, Drepanidinae, and the only member of the genus Vestiaria. The I'iwi is a highly recognizable symbol of Hawai'i. The I'iwi is the third most common native land bird in the Hawaiian Islands.  Altogether, the remaining populations add up to a total of 350,000 birds.  There are large colonies of I'iwi on the islands of Hawai'i and Kaua'i, and smaller colonies on Moloka'i and O'ahu; I'iwi were extirpated from Lāna'i in 1929. It was formerly classified as a Near Threatened species by the IUCN, but recent research has proven that it was rarer than previously believed. Consequently, it was uplisted to Vulnerable status in 2008.  Caption and photo from wikipedia.


READER CORRESPONDENCE: Earlier today, I received the following insightful comment from Elizabeth Ellis, an Environmental Planner who works for the Washington State Department of Natural Resources.  Our dialogue deserves reproduction here...

Hi Keith,

I really appreciate your insight into the ESA, although sometimes I think you may be a bit critical. I used to work for NMFS doing section 7(a)(2) ESA consultations on the Columbia River. While petitions may seem like they are a burden, they are also a tool if completed correctly. They allow multiple species to be submitted and reviewed at once, which saves the agencies time, reduces their workload, and saves their money.  Let's not overlook the reductions in the staff and funding the services have had to endure. To remove a tool meant to streamline may do more harm than good.  Yes, some folks may be misusing it, but as you point out correctly, what could happen if it is removed? Single-species petitions (again?)? Now THAT is a burden.

Let's look at the real issues - why are the petitions coming in so quickly, Keith? Are people just mad at the services? Are they anarchists? Are they bored?  No, the reality of it is, there is science supporting species decline as our population increases. Many people want to conserve and protect these species and their habitat before it is too late and see the ESA as a tool to do that. Perhaps we need to develop more mandatory protections for species and their habitat in every state to ease the burden on the ESA, so that it can be used correctly - as an emergency room for species in in dire straits.

To quote Professor Emeritus Gorden H. Orians, University of Washington, the ESA is just a "finger in the dike" of biodiversity. It is not the answer.  We must build better dikes, as Professor Orians to rightly reminds us, in order to protect the future of species and their habitats. Not rely on the emergency room.




MY REPLY:  I support the petition process, and do not advocate its elimination. I simply believe that the inevitable litigation over all these petitions is a waste of intellect, and money. Yes, some petitions may have merit, but those merits compete with the needs of existing listed species, and the needs of other petitioned species. Under the current system, two litigious non-profit organizations can force FWS and NOAA to drop every other priority and address their petitions.  Other discretionary activities, like recovery planning, stop dead.  I say let the agencies limp along, and give them sufficient discretion to sort out the priorities by eliminating the much too rigid 12-month deadline.  I also agree that the ESA cannot continue to serve as the only tool regulating biodiversity, and have repeatedly emphasized the point that the ESA is drowning under the weighty risk of extinction created by climate change and sea level rise.  Sadly, we need to make room for triage, at least until we build those additional dikes that Professor Orians espouses. Indeed, perhaps the intellect spent on lawsuits can be redirected to building those new dikes -- climate change legislation, anyone?  The economic and intellectual savings from less litigation can be reinvested in agency resources and species protection.  See also, ESA blawg postings in 2008(has climate change jeopardized the ESA?) and 2008(the preservation predicament) and 2009(climate change and the 5-factor analysis) and 2009(polar bear listing shows need for climate legislation) and 2010 (listing of the van Rossem’s gull-billed tern, now what?).  

Comment period ending, but controversy over the Ozark chinquapin just beginning?


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A few weeks ago, FWS published its notice that it was considering the listing of the Ozark chinquapin.  See ESA blawg.  The deadline for commentary just expired, but the controversy over the Ozark chinquapin, Castanea pumila var. ozarkensis, may have just begun.  Robert Barnes, who regularly works on the protection and restoration of the tree, see, offered his insights to ESA blawg: "There is so much misinformation, outright lies and deliberate exagerations about Castanea Ozarkensis that It would be extremely difficult to catalogue them all. I spend a great deal of my time trying to correct some of the misinformation. It does little good as more is constantly coming online. I greatly appreciate everyone's efforts in saving and preserving endangered species. The Ozark Chinquapin, however, is not endangered." He said.

The Ozark chinquapin has been considered by some taxonomists to be a separate species in the genus, Castanea, and has been named Castanea ozarkensis, but other classifiers have named it Castanea pumila var. ozarkensis --a variety of the Allegheny chinquapin.  It is a chinquapin since it produces only one seed per bur, not three as in the American chestnut, but its leaves resemble the American chestnut and it used to attain tree dimensions before the blight.  The photo above, from, shows Robert Barnes beside some of his chinquapin seedlings which he uses as rootstocks for scions from superior Ozark chinquapin trees.

Elaborating on his conclusion, Mr. Barnes made four points: "(1) Castanea Ozarkensis is in NO danger of extinction, period. (2) The tree routinely produces seed whether blighted or not. (3) The blight does not kill the Ozark Chinquapin.  And, finally, (4) The range of the Ozark Chinquapin is at the present time expanding." In support of these statements, he said that the current range of the species includes Southwest Missouri, Eastern Oklahoma, and Arkansas, with hundreds of thousands of trees.  See maps from and  Significantly, Mr. Barnes explained that he has personally been involved with curing chestnut blight in these trees, citing an article from Science Direct by Ping Ding et. al, "Transmission of Cryphonectria hypovirus to protect chestnut trees from chestnut blight disease," Biological Control, Volume 40, Issue 1, January 2007, Pages 9-14.  Ultimately, Mr. Barnes viewed the entire dialogue as misleading, drawing parallels to the "WMD and Iraq scenario."

KEITHINKING: Mr. Barnes may be colorful, but he makes a noteworthy point.  A tree that is producing fruits, and showing resistance to blight, with prospective treatment techniques, may not rise to the level of likely to become an endangered species -- in danger of extinction -- in the foreseeable future.  

ESA news: NOAA authorized ZERO incidental take of sea turtles for BP and others in Gulf BiOp; more news from Florida, Alaska and places inbetween


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We don't know how many sea turtles exist, and scientists and fishermen continue to debate the merits of using nesting female data to understand population trends. See  But we do know that Deepwater Horizon reduced the numbers of sea turtles (and pelicans and bluefin tuna).  See ESAblawg.  In fact, we also know that loss of those sea turtles was illegal, and perhaps a crime.  In the biological opinion covering the Deepwater Horizon project, NOAA stated that it was not authorizing any -- yes, ZERO -- incidental take of sea turtles due to oil spills:

Takes of Listed Species Resulting from Spilled Oil.  NMFS believes that a small number of listed species will experience adverse effects as the result of exposure to a major oil spill or ingestion of accidentally spilled oil over the lifetime of the action. Spilled oil resulting from the proposed action could take up to 42 lethal and 111 non-lethal takes of loggerheads; 2 lethal and 7 non-lethal takes of a leatherback sea turtles; 9 lethal and 16 non-lethal takes of Kemp’s ridley sea turtles; 13 lethal and 36 non-lethal take of green sea turtles; 2 lethal takes of Gulf sturgeon; and 11 non-lethal takes of sperm whales over the 40-year lifetime of the proposed lease sales. However, NMFS is not including an incidental take statement for the incidental take of listed species due to oil exposure. Incidental take, as defined at 50 CFR 402.02, refers only to takings that result from an otherwise lawful activity. The Clean Water Act (33 USC 1251 et seq.) as amended by the Oil Pollution Act of 1990 (33 USC 2701 et seq.) prohibits discharges of harmful quantities of oil, as defined at 40 CFR 110.3, into waters of the United States. Therefore, even though this biological opinion has considered the effects on listed species by oil spills that may result from the proposed action, those takings that would result from an unlawful activity (i.e., oil spills) are not specified in this Incidental Take Statement and have no protective coverage under section 7(o)(2) of the ESA.

See Endangered Species Act - Section 7 Consultation, Biological Opinion (June 29, 2007) at page 101.  Again, in the absence of any incidental take authority at all, BP violated the prohibition against take of protected species in Section 9 of the Endangered Species Act.  And more than 700 stranded, oiled or dead turtles have been discovered.  As a result, Sea Turtle Restoration Project has notified BP and the U. S. government that the clean-up of the BP oil spill in the Gulf of Mexico is harming endangered sea turtles in violation of the Endangered Species Act (ESA), and other environmentalists have argued that NOAA's Endangered Species Act analysis was too superficial.  See Living on Earth and see also, ESA blawg.  In an effort to prevent a repeat of the same mistakes, the Center for Biological Diversity filed a NEPA-based suit, seeking to require expanded analysis of large scale spills.  See New York Times.  (CBD is probably onto something here; a federal district court judge in Alaska already issued an order halting all oil and gas activities in more than 29 million acres of the Chukchi Sea.  See  Meanwhile, volunteers are trying to save the sea turtles species by relocating impacted eggs, VoiceOfAmerica, and the traditional threat of excessive beach lighting continues to take its toll on the species.  See Sarasota Herald-Tribune and New York Times.  

Dr. Brian Stacy, NOAA veterinarian, cleans a young Kemp's ridley turtle.  Photo: NOAA/GADNR


Some of the other traditional Endangered Species Act newsmakers made their usual media appearances.  The Alaska Legislature cancelled its planned ESA conference, but Alaskan cruise ships are increasingly interacting with humpback whales, risking criminal investigations.  See  In Oregon, locals said "thanks for nothing" to a federal task force report discussing the effects of the ESA on timber forests. See  New Mexico officials want the U.S. Fish and Wildlife Service to revisit the endangered status of the Rio Grande silvery minnow.  See Bloomberg.  Another wind farm lawsuit could soon blow through Western Maryland. See The Baltimore Sun.  And finally, the judge endured the continued absence of any negotiated solution to the historic dispute between Florida and Georgia over Apalachicola River discharges and flows.  See article on court ruling and more in Atlanta Journal Constitution and Newnan Times-Herald.  

But Endangered Species Act issues also continue to develop in entirely new places.  U.S. farmers fear that the ESA could dramatically change agricultural pesticide use regulations.  See Miami Herald.  And in Texas, a bellweather lawsuit brought by The Aransas Project, over whether regional water management resulted in a taking of whooping cranes, will head to trial in 2011. See  

Finally, and as usual, the Center for Biological Diversity continues to play an enormous role in the reshaping of the ESA.  Among their recent announcements: a petition to reintroduce wolves across the nation, see Minnesota Public Radio, and a challenge to a 677 mile natural gas pipeline affecting Nevada's listed species.  See Las Vegas Review Journal.  Also noteworthy: Yale Environment 360 offered a comprehensive article on the environmentalists ongoing efforts to use the ESA to regulate climate change.  See ESA blawg, Has Climate Change Jeopardized the ESA?

New wildlife issues surfacing in Gulf, environmental advocates resist wind energy, and Endangered Species Act challenges mount, nationwide.


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Deepwater Horizon was not “reasonably likely to occur.”  ESA blawg readers already knew, as a legal matter, that FWS must have reached that conclusion when it allowed the project to move forward.  See prior ESA blawg and Wired News.  Recent news coverage confirmed the legal conclusion in its story citing a September 2007 U.S. Fish and Wildlife Service memo stating that large oil spills from the Gulf of Mexico projects were "low-probability events that weren't likely to affect brown pelicans, sea turtles and other animals with Gulf Coast habitats.”  See New York Times coverage by Leslie Kaufman.

Low risk? Not for the turtles burned alive when surface oil is incinerated as part of the Deepwater Horizon response effort.  See MyFoxTampaBay (photo above by Pinar Ozgar from The Atlantic.  And Sea Turtle Restoration Project even reported that boats were being prevented from saving the turtles.  Protests followed: one Facebook page sought to earn a million subscribers.  Only days ago, environmentalists sued BP for the activity.  See Business Week.  The lawsuit proved effective.   In a proposed settlement, BP said it will allow wildlife biologists onboard clean-up vessels to spot and remove ensnared turtles.  See, Christian Science Monitor.  

The sea turtle story may just be the first of many similar tales.  Due to the oil spill, NRDC plans to file a lawsuit related to sperm whales, and the Center for Biological Diversity filed a petition to list the bluefin tuna as a threatened species.  See New York Times.  Whale sharks, already a threatened species, have also been seen swimming through the BP oil spill.  See DeepTypeFlow and Discovery news.  And The Boston Globe worries about the piping plover, a threatened migratory shorebird species that nests in the Gulf.


While the oil in the Gulf flames, Endangered Species Act news elsewhere in the nation has often sat on the back burner.  But some important stories are cooking.    

For starters, anyone who thinks that greener energy can avoid disastrous oil-related decisions, and its wildlife consequences, will soon scratch that idea.  Environmentalists already sued the U.S. Fish & Wildlife Service for its approval of the the nation's first offshore wind energy project, allegedly for failure to comply with the Endangered Species Act process for Roseate Terns, Piping Plovers and the North Atlantic Right Whale.  See LA Times.  Sadly, the Bush Administration's FWS did it to themselves again, and some groups claim the lawsuit stems from the January 2010 Interior Inspector General report that the plaintiffs say “found that the agencies reviewing the project’s environmental impact study were unnecessarily rushed in their reviews because of the applicant’s desire to complete the environmental review prior to the exodus of the Bush Administration.”  See   A proposed wind farm in Western Maryland faces similar opposition.  See The Baltimore Sun.

Offering some historical perspective on how much the Endangered Species Act has matured, The New York Times looked back on the twenty years since the Northern Spotted Owl earned a place as a listed species.  But less charismatic species get attention too. Another New York Times story reported that the federal government proposed nearly $3 million in fines against the City of Birmingham, Ala., over the death of 12,000 watercress darters, one of the largest fish kills in the history of the Endangered Species Act.  

West coast fisheries remain in the news as well. notes that drought-ravaged Klamath farmers, whose water supplies compete with salmon and sucker fish, are finally getting an increase in water deliveries.  A similar competition between delta smelt and regional irrigation earned a central role in the recent debate between California Senate candidates.  See

Offering some much needed optimism,, citing an newly produced USGS map of the ecosystems of the United States, hoped that wildlife managers had a new tool -- and new tools are certainly needed.  An AP News story by Dan Joling on polar bears led with the statement that "The iconic bears are threatened with extinction, and so far nothing much is being done."  Then again -- as frequently noted here at ESA blawg -- the story also recognized that listing a species as threatened or endangered, due to climate change, will solve nothing, because the ESA lacks any meaningful tools to address human induced but global scale climate issues.  

As for the list of new lawsuits?  The Center for Biological Diversity sued FWS over the sage grouse, and filed a notice of intent to sue related to the plains bison, striped newt, Berry Cave salamander, Puerto Rican harlequin butterfly, Ozark chinquapin, western gull-billed tern and Mohave ground squirrel. For several of these rare species, the agency has missed legal deadlines by years..  WildEarth Guardians sued over the Mexican Spotted Owl too.


P.S.  I just returned from a trip to Alaska, and must agree with the recent article noting the abundance of bald eagles.  A belated Happy Fourth of July to all my readers!

Going deeper yet: BP's Deepwater Horizon disaster will have far-reaching effects on sea turtles, fisheries, and future ESA consultations.


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The life-altering Deepwater Horizon oil disaster will have immediate implications for regional implementation of the Endangered Species Act.  In the near future, NOAA and FWS will probably need to re-evaluate many biological opinions and other documents to reassess the status of many endangered and threatened species, especially sea turtles.  That reassessment, in turn, could affect many people and future projects, and disproportionately, the Gulf of Mexico fishermen.

The Gulf of Mexico is of incredible importance to five of the seven various sea turtle species.  See, e.g., Padre Island National Seashore.  As a result, each year, Gulf of Mexico fisheries endeavor to protect sea turtles, using gear such as turtle excluder devices and circle-shaped hooks.  See NOAA's gear strategies.  But even the best fishing practices still result in "incidental take" of turtles, including mortality, as well as harm due to accidental hooking.  In the biological opinions that consider the impacts on sea turtle species, the Gulf of Mexico fisheries receive very low allowances of incidental take before the ESA required reasonable and prudent measures put the fisheries at risk of being closed.  See, e.g., 2009 spiny lobster fishery biological opinion(allowing as little as one turtle mortality) and NOAA Southeast Regional Office(with links to other biops).  These numbers are low because, in reaching its conclusions on the allowable incidental take for each biological opinion, NOAA considers the cumulative fishery take to ensure that the total number of anticipated sea turtle mortality, for all fisheries, will not pass the prohibited threshold of "likely to jeopardize the continued existence of the species."  ESA Sec. 7(a)(2).  (This type of cumulative take analysis has been an especially difficult problem for the U.S. Fish & Wildlife Service.  See GAO Report.)

Unfortunately, none of the prior biological opinions, on any of the fisheries, considered the potential effects of an extraordinary oil disaster in the Gulf of Mexico.  While oil spills were understood and acknowledged as a problem for the species, no prior biological opinion ever fathomed a gaping hole at the bottom of the ocean that would destroy massive areas of habitat, poison food sources, and physically suffocate species.  Today, at least 280 sea turtle takes have occurred, with at least 234 stranded dead.   See NOAA and Gulf Restoration Network.

The BP-oil-coated turtle above got lucky, and was rescued.  Image from ProPublica, courtesy of  Louisiana Department of Wildlife and Fisheries.

The BP disaster, and the emerging data on sea turtle mortality, probably constitutes "significant new information" that requires a new ESA Section 7 consultation process and that will lead to dozens of modified biological opinions. Due to the oil disaster, the "environmental baseline" and "status of the species" has changed.  The result could be even lower incidental take authorizations, and maybe even quicker fisheries closures.  Moreover, NOAA will also need to revise its recent recovery planning and status review documents for sea turtle species.  New designations of critical habitat may be needed, if the Deepwater Horizon disaster has destroyed habitats.

The Endangered Species Act's rigid and relentless logic will apply to more than just sea turtles.  NOAA, for example, will need to think about the effects of the disaster upon the petition to list 82 coral species.  FWS may need to reconsider its recent delisting of the brown pelican.   See The Independent (UK).  The disaster affected countless other unlisted species, too.  Recently discovered deep water coral habitats may be destroyed, and Bluefin tuna suffer, leading environmental advocacy groups to petition for yet another species to be listed.  In the end, many, many species will be affected once the unknown impacts of millions (maybe even billions?) of gallons of oil and dispersants finally reach the Gulf of Mexico's loop current, and eventually the Atlantic gulfstream.

Sadly, we've been here before.  Like Harry Truman said, "The only thing new in this world is the history that you don't know."  Environmental advocacy groups have fought over the failure to sufficiently plan for oil spill impacts on marbled murrelets.  See, e.g., EPIC litigation.  In fact, oil spills are a well understood threat to that species, and the effects of oil spills (albeit not of BP catastrophe size) are routinely considered during the ESA implementation process.  See, e.g. FWS critical habitat rule and 1997 Recovery Plan.  In Alaska, sea otters faced similar problems after the Exxon Valdez.

A generation from now, everyone may simply adapt to and accept the lower numbers of sea turtles, reefs, pelicans and other wildlife in the Gulf of Mexico.  The disturbing shifting baselines trend will continue, with future generations considering places to be "pristine" that their ancestors would have scoffed at -- the same ancestors who destroyed those same places.  But our environmental conscience, best signified by the Endangered Species Act, will desperately continue to try to convince homo sapien to alter its own behavior to prevent the extinction of other species.  

Still, the ESA failed to prevent, nor even mitigate, this disaster.  An old Spanish proverb says, "Laws, like the spider's web, catch the fly and let the hawk go free."  Apparently, for years, BP was the hawk, and now the fishermen look like flies.  Maybe, in the end, BP will truly "make things right" -- as they promise in their ad campaign.  Or perhaps the Department of Justice will prosecute BP for Endangered Species Act violations, and its unpermitted take of hundreds of endangered and threatened sea turtles.  But even if crimes are prosecuted, the fishermen's dilemma remains.  

NOAA has already closed substantial portions of the Gulf of Mexico to fishing.  The crab, lobster, oysters, reef fish, shrimp, and pelagic species, and the fishermen who hunt for them, are suffering (or may soon).  But even if the fisheries themselves survive, or avoid the impacts, the ESA could compound the difficulties for the already impacted fishermen.  Fortunately, NOAA already understands this problem, and has been working on developing new ways to manage fisheries and their impacts on sea turtles.  See NOAA's Strategy for Sea Turtle Conservation and Recovery.  Still, as the gallons of oil in the Gulf of Mexico multiply, the future challenges of fishery regulation and ESA implementation intensify.


75 Fed. Reg. 30769 / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Proposed Rules
DEPARTMENT OF INTERIOR / Fish and Wildlife Service
50 CFR Part 17
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
Endangered and Threatened Species; Proposed Listing of Nine Distinct Population Segments of Loggerhead Sea Turtles as Endangered or Threatened; Extension of Comment Period

SUMMARY: NMFS and USFWS hereby extend the comment period on the proposed listing of nine distinct population segments of loggerhead sea turtles as endangered or threatened, which was published on March 16, 2010, until September 13, 2010. In addition, NMFS and USFWS will hold a public hearing in Berlin, MD, on June 16, 2010 to answer questions and receive public comments.

KEITHINKING: Public comment will probably include significant attention to the long-term effects of Deepwater Horizon upon the global populations of sea turtles.

Going deep on the oil disaster: BP's Deepwater Horizon reveals need for improvements to Endangered Species Act implementation


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Earlier this week, the Obama Administration announced its re-evaluation of National Environmental Policy Act implementation practices related to oil and gas exploration.  See Council on Environmental Quality Federal Register Notice, 75 Fed. Reg. 29996 (Friday, May 28, 2010).  Our nation needs a similar review of Endangered Species Act implementation, which should include consideration of disasters in the consultation process.  

The director of the Minerals Management Service, an environmental lawyer, already resigned due to British Petroleum's (BP) disaster.  See Washington Post.  And surely, the Mineral Management  Service (MMS) deserves much of the blame for its woefully inadequate regulation and oversight of the oil industry.  But what happened to the Endangered Species Act during that process?  The law that the U.S. Supreme Court once famously wrote "admits of no exception" in TVA v. Hill obviously made exceptions for BP.

To the credit of its many committed professionals and scientists, the National Marine Fisheries Service (NMFS, also known as NOAA Fisheries), raised serious red flags about the MMS and the oil and gas exploration process in a September 2009 letter.  See highlighted version from New York Times, especially pages 10, 23-24.  Throughout the document, NMFS offered to provide Marine Spatial Planning information to assist in siting decisions.  They warned about risks to endangered species and coastal and coral habitats.   And, demonstrating well-founded foresight, NMFS emphasized the historic underestimation of oil spills and consequences.

In fact, for many years, the oil industry has broken down the Endangered Species Act consultation process into fragments to reduce the scope of the inquiry.  The Section 7 ESA Consultation Handbook -- a very important ESA implementation document developed by NMFS and the U.S. Fish & Wildlife Service -- actually allows this type of "segmented" consultation process for the oil and gas industry: "Incremental step consultation is most appropriate for long-term, multi-staged activities for which agency actions occur in discrete steps, such as the development of oil and gas resources on the Outer Continental Shelf."  But the Section 7 Consultation Handbook also noted the stern language of a significant Ninth Circuit opinion, Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988), where the court rejected a "segmented" consultation for an oil lease in a National Forest, holding that: "the FWS cannot ignore available biological information or fail to develop projections of oil and gas activities which may indicate potential conflicts between development and the preservation of protected species."

Indeed, the segmentation of consultation presented a significant challenge to NMFS when it attempted to evaluate the MMS plan for the Outer Continental Shelf (OCS) Oil and Gas Leasing Program for 2010-2015.  In that September 2009 letter, NMFS explained its concern: "It is unclear from the plan how MMS intends to engage NOAA in coordination regarding threatened and endangered species and marine mammals at the different stages in the leasing process. Under this section it appears that MMS does not intend to consult with NOAA under the authorities of the Endangered Species Act and the Marine Mammal Protection Act until the lease sale stage. MMS should clarify how coordination will occur so that effects of oil and gas development on listed species and marine mammals can be fully considered prior to any lease sale."

Ultimately, in the case of the Deepwater Horizon disaster, the segmented consultation process, and the ESA regulations, allowed BP to do exactly what the Ninth Circuit and NMFS wanted to avoid, and no one developed projections for the potential conflicts between oil development and species preservation.  These tensions were readily identifiable.  On the one hand, oil development is an economic necessity, and a total catastrophic failure, leading to an unplugged well at the bottom of the Gulf of Mexico, was a deemed to be a highly unlikely event (but not unimaginable, and yes, even foreseeable).  On the other hand, allowing the unlimited and unstopped flow of massive amounts of oil into the Gulf of Mexico unquestionably jeopardizes the continued existence of the endangered and threatened species in the Gulf of Mexico, so a way to plug the well is an absolute necessity, and probably should have been considered as part of any effort to ensure the survival and recovery of listed species.  Unfortunately, even if the tensions had been discussed between BP, MMS and NMFS, the ESA did not allow NMFS to do anything to regulate them.

Rather than requiring consideration of or consultation on a contingency plan for emergency management, the ESA limits its analysis to actions that are "reasonably certain to occur."  50 C.F.R. 402.02 (defining "effects of the action").  This clause, as the Section 7 Consultation Handbook explains, is a key factor in assessing and applying cumulative effects in biological opinions.  And that is where the ESA fails.  ESA implementation does not provides for consultation on disaster planning, nor does the ESA provide authority or guidance for minimizing and mitigating the effects of an action upon listed species in the event of a disaster.  Rather, the ESA regulations are entirely reactive, allowing for informal consultation only once the emergency actually occurs. 50 C.F.R. 402.05.

In litigation, some environmental advocacy groups have expressed similar concerns with the lack of foresight in the ESA consultation process.  For example, in Ground Zero Center for Non-Violent Action v. U.S. Department of the Navy, 383 F.3d 1082 (9th Cir. 2004), environmental groups argued that the Navy had failed to review the probable significant environmental impacts of an accidental explosion of a Trident II(D-5) missile during operations at its base in Bangor, Washington.  The environmental advocacy groups argued that the Navy failed to consult NMFS regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the Bangor submarine base.  Ultimately, the court held that no ESA Section 7 consultation was required, in part, because the risks were remote.

Ground Zero, in its national security context, sounds like common sense.  If the nuclear weapons blow up, residents of Washington State will have much more than salmon to worry about.  But bad facts make bad law.  In other contexts, such as BP, some preventative planning would make sense.  Otherwise, the consequence of the "reasonably certain to occur" approach is that, if and when the unreasonable and uncertain disaster actually occurs, wildlife preservation and endangered species protection will certainly be a low priority.  Of course, it is entirely appropriate and necessary to put people and their property as a top priority, and to focus disaster funds and responses on those needs.  In fact, the ESA creates an express exemption from its requirements for "the repair or replacement of a public facility substantially as it existed" prior to a disaster.  ESA, Sec. 7(p).  But the BP disaster reveals a different problem.  

Even some small degree of advance planning, had it been required by the ESA, could have enabled much faster decision-making and response times for BP, the Federal Government, and for the endangered and threatened species in the Gulf.  Consider the timetable.  The tragic disaster occurred on April 20, and then:
  • on April 26, the Deepwater Horizon Unified Command decided to send submersible remote operated vehicles to the bottom of the Gulf;
  • on May 7, BP deployed a cofferdam (in the failed first effort to stop the flow) because BP had to wait for its manufacture;
  • on May 15, EPA approved subsea use of dispersants; and
  • on May 20, EPA directed BP to use a less toxic dispersant.

Weren't all of the items above self evident?  The oil rig was at the bottom of the ocean, so of course remote devises needed to be deployed.  Shouldn't a cofferdam (or at least a "top hat") have been constructed and ready from the first moment the drilling began, because how else did BP (or anyone else) expect to stop the flow?  Shouldn't dispersant analysis have been done before the disaster ever occurred?  Call it Monday morning quarterbacking, perhaps.  But isn't it tragic that, by failing to even consider the possibility of a disaster, everyone failed to minimize and mitigate for the impacts of this disaster in such obvious ways?  The reality is that none of these questions were even considered.  (In fact, under NEPA, the project also got an abbreviated review. See The Wildlife News.)  The law required the agencies to protect endangered and threatened species only to the extent that an event was "reasonably certain to occur," and BP's Deepwater Horizon disaster was never reasonably certain to occur.  

But it did occur.  And now it is reasonably certain that changes are needed.  

There's lots of blame to go around.  But as Congress holds its committee meetings, it should hold up a mirror, and reflect on the law it makes.  Two options include amending the ESA to prohibit segmented consultation for the oil industry, and to develop new procedures for contingency planning and disaster consultation when warranted by projects (like oil drilling) that present massive risks and threats for wildlife.  (If an exception is needed for national defense, as suggested by Ground Zero, then so be it.)  

Cessation of oil drilling is reasonably certain not to happen.  But helpful ESA reforms can and should be on the horizon.

More than 600,000 gallons of chemical dispersants have been used in the Gulf of Mexico, and as shown by the photo from Youngstown-Warren Air Reserve Station above, military aircraft routinely train in dispersant application in the Gulf of Mexico.  The long-term effect of this remains unknown, but as this ESA musing suggests, the effects of massive amounts of dispersants could have -- and should have -- been considered before the disaster occurred.  For more information, read the article on dispersant use from BBC World Service.

Thanks to for creatively rediscovering this one.  


Keithinking: More to follow. The next ESA musing will discuss the potential consequences of the BP Deepwater Horizon disaster for future ESA consultations.

Five cases, four federal publications, and twenty species: catching up on recent Endangered Species Act events


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My newborn will arrive any day now, but the least I can do for my readers is a quick round-up of recent ESA news, caselaw, and announcements that I've been tracking.  

The Pacific Legal Foundation is celebrating a settlement in which the U.S. Fish & Wildlife Service agreed to consider, by July 30, 2010, the Riverside County Farm Bureau's petition to delist the Stephens Kangaroo Rat.  PLF's victory with the one critter may soon be offset by a new wave of litigation.  In Wildearth Guardians v. Salazar, Civil Action No. 09-cv-1893, 2009 WL 6443120 (S.D.Tex., Dec. 7, 2009), the court rejected a motion to dismiss alleging that FWS had unreasonably delayed the completion of a recovery plan for the jaguarundi.  Plaintiffs alleged that an existing 1990 document failed to meet the ESA's recovery plan criteria, and the Court rejected the federal defendants' argument that the statute of limitations had expired.  Get ready for copycat lawsuits against FWS and NOAA alleging a failure to complete adequate recovery plans.

In Florida and Montana, the endless litigation added new chapters.  In Miccosukee Tribe v. U.S. Fish & Wildlife Service, Case No. 05-23045-CIV-MOORE/SIMONTON, 22 Fla. L. Weekly Fed. D259a (S.D. Fla. Mar.19, 2010), the Tribe filed a motion to enforce a mandate from the 11th Circuit decision above, and the District Court held that the amended incidental take statement was invalid in part, because it used habitat markers instead of numerical triggers to measure Cape Sable seaside sparrows, but also held that the ITS was valid as to snail kites and wood storks, because the ITS adequately demonstrates why using a numerical trigger to measure incidental take as result of water management actions was impractical.  In Rock Creek Alliance v. U.S. Forest Service, Nos. CV 05-107-M-DWM, CV 08-028-M-DWM, 2010 WL 1872864 (D.Mont., May 4, 2010), Plaintiffs challenged a 2006 biological opinion on a federally authorized mining project, alleging that the determinations  in the 2006 Biological Opinion were arbitrary and capricious because the grizzly bear analysis relied in part upon the future acquisition of mitigation habitat land.  U.S. District Court Judge Molloy sharply disagreed: "Plaintiffs do not directly assail the rationality of the 'no jeopardy' conclusion, attempting instead to undermine the agency's reasoning by isolating a single aspect of the mitigation plan and arguing on the margins about how much stock the agency placed in it. The argument is incomplete as well as inaccurate."

Perhaps the biggest news came from California in the Sacramento Bay Delta litigation.  In The Consolidated Salmonid Cases, No. 1:09-cv-1053 OWW DLB, : 2010 WL 2011016 (E.D.Cal., May 18, 2010), Judge Wanger issued his Findings of Fact and Conclusions of Law Re: Plaintiffs Request for Preliminary Injunction after considering the claims by water users that the implementation of reasonable and prudent alternatives in a 2009 biological opinion would irreparably harm them.  Finding that an injunction of the salmonid protection measures -- which in turn created water supply and irrigation cutbacks -- was warranted, the opinion noted that "The stakes are high, the harms to the affected human communities great, and the injuries unacceptable if they can be mitigated," and further held that "Injunctive relief cannot be imposed without up-to-date evidence of the status of the species to assure that altered operations will not deepen jeopardy to the affected species or otherwise violate other laws." The pendulum has swung. See Association of California Water Agencies, Pacific Legal Foundation blog.  After another hearing, Judge Wanger issued an order allowing more water use. See  However, the swing of the delta pendulum may be brief.  In Coalition for a Sustainable Delta v. FEMA, Case No. 1:09-CV-2024 OWW DLB, 2010 WL 1904824 (E.D.Cal., May 10, 2010), Judge Wanger granted leave to amend a complaint.  Embracing a strategy familiar to the Key Deer and the Conch Republic, the Plaintiffs now allege that FEMA's administration of the National Flood Insurance Program encourages development in the Delta, which adversely affects four species listed as threatened or endangered under the Endangered Species Act (“ESA”): the delta smelt, the Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, and the Central Valley steelhead (collectively the “Listed Species”). Plaintiffs further allege that FEMA is administering the NFIP in violation of ESA Section 7, which requires federal agencies to insure that their actions do not jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat. See 16 U.S.C. §1636(a)(2).

Finally, in recent pages of the Federal Register:
  • FWS announced the reopening of the comment period on a proposed rule to designate critical habitat for Ambrosia pumila (San Diego ambrosia), see 75 Fed. Reg. 27690 (Tuesday, May 18, 2010);
  • FWS announced intent to prepare a draft environmental impact statement (EIS) to evaluate the impacts of several alternatives relating to the proposed issuance of an Endangered Species Act Permit to EverPower Wind Holdings, Inc., its subsidiary Buckeye Wind LLC, and its affiliates (applicant) for incidental take of the Indiana bat (Myotis sodalis), a Federal endangered species, from activities associated with the construction and operation of a wind power project in Champaign County, Ohio. 75 Fed. Reg. 29575 (Wed., May 26, 2010);
  • NOAA proposed to affirm the Endangered Species Act (ESA) status for the Oregon Coast (OC) Evolutionarily Significant Unit (ESU) of coho salmon (Oncorhynchus kisutch) by promulgating a rule that will supersede a prior February 11, 2008, listing determination for this ESU. 75 Fed. Reg. 29489 (Wednesday, May 26, 2010);

ESA in the news: HCP overshadowed by Pacific politics, Caribbean crimes, Gulf of Mexico oil disaster and Southeast's increasing ESA sophistication


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Earlier this week, wildlife officials from Nevada and the U.S Fish & Wildlife Service proudly culminated 12 years of work with the signing of the Section 10 permits for the Southeastern Lincoln County Habitat Conservation Plan.  See the Lincoln County Record.  The plan covers impacts to and take of desert tortoise (Gopherus agassizii) and southwestern willow flycatcher (Empidonax trailii extimus) on non-Federal lands associated with land development and maintenance activities, utility and infrastructure development and maintenance activities, flood control activities, County roadway maintenance, railroad construction and maintenance, and the conversion of an existing land use to another land use.  See links to document from Nevada FWS office.

But the cooperative approach to Endangered Species Act implementation in Lincoln County stood in stark contrast to other news from California, Nevada and Idaho.  In California, Westlands Water District has been hiring the experienced, and controversial, officials from the Bush Administration, including Craig Manson and Julie MacDonald, to represent it in the ongoing struggles over the regional water supply system and its effects on the delta Smelt in the Sacramento Bay-Delta.  (Both officials were later fingered for wrongdoing by U.S. Department of Interior Inspector General Report.)  See Inside Bay Area.  Another ESA critic, Nevada's energy director, recently stunned the environmental community when he declared his "plan of attack" for implementing energy initiatives.  A recent speech further surmised that federal environmental policies are nothing more than bureaucratic hurdles serving mostly to create more work for federal employees. See Las Vegas Sun.  Taking the idea one step further, Idaho State representative candidate David Klingenberg said he supports the nullification of the Endangered Species Act.  See The Spokesman-Review.  But local citizens associated with Western Watersheds Project obviously disagree, and filed a lawsuit in U.S. District Court in Boise, comparing the federal decision not to list the Western Sage Grouse, and its categorization as warranted but precluded, as putting the bird in the "black hole."  See Bloomberg.  

Some of the ESA opponents inevitable cross the line and commit criminal acts.  In Tennessee, illegal off-site construction discharges violated the Clean Water Act and also killed nine Nashville Crayfish, a listed species, violating the ESA. See Nashville Post.  In the Virgin Islands, a Hawksbill sea turtle death made local news due to illegal gillnet fishing.  See Virgin Island Daily News.  In Wisconsin, a 60-year old potato farm is under federal investigation, allegedly for the poisoning of the grey wolf.  According to News of the North, Sowinski Farms is one of the largest suppliers of chip stock potatoes to national companies including Frito-Lay and Snowden. Sometimes, even ESA supporters get caught acting illegally.  Officials from the Arizona Game and Fish Department may have been engaged in illegal and unpermitted efforts to capture a wild jaguar.  See Arizona Star(whistleblower story) and Arizona Star (rebuttal by state officials).

But all those "crimes" pale in comparison to the oil spill disaster in the Gulf of Mexico, which could be deadly for endangered and threatened wildlife. See FoxNews Science. Dead turtles are washing up on the shores of the Gulf Coast, perhaps as a result of the Deepwater Horizon Oil Spill.  See Reuters and Discovery News.  In an in-depth and interactive daily update, Sea Turtle Restoration Project reports that the Deepwater Horizon oil spill jeopardizes all sea turtles in the Gulf of Mexico. See also  The Guardian.  Although NOAA has long acknowledged the threat that oil development presents to sea turtle species, see National Ocean Service, thus far, NOAA has said that the reported Kemp's Ridley sea turtle deaths were NOT due to the oil spill.  See Environment News Service.  Still, the timing of the oil spill will probably prove to be significant for future implementation of the Endangered Species Act, because the loggerhead sea turtle is being considered for a listing change from threatened to endangered, and the oil spill also occurred during NOAA's review of the recovery plan for the Kemp's Ridley Sea Turtle.  See Environment News Service and New York Times.   Louisiana species, including the recently delisted brown pelican, could be in trouble too, as oil continues to reach the barrier islands.  See Environmental News Service and UK Times Online.

Photo of sea turtle swimming through BP's Deepwater Horizon oil spill, image from Guardian UK.

While sea turtles suffer from oil development, panthers suffer from land use development, noted Craig Pittman in a recent article.  Calling the species a "Dead Cat Walking," the article discusses the insufficiency of existing habitat protections.  See  In fact, all over the southeast, environmental groups and others are showing increasing awareness of the Endangered Species Act.  As previously noted here at ESA blawg, the Center for Biological Diversity filed a petition to list 404 wetland species as threatened or endangered.  See ESAblawg, New York Times, and Scientific American. Now, Mississippi groups are threatening to sue over a project threatening the critically endangered Mississippi gopher frog's last confirmed breeding pond.  See  And finally, in a case sure to catch national attention, Florida's ESA suit, alleging that the U.S. Army Corps operation of a Georgia dam in the Apalachicola-Chattahoochee-Flint River Basin is killing downstream populations of listed mussel species, will soon be argued in Federal Court.  See Gainesville Times.

Wetland protection by ESA listing petition: CBD seeks to list 404 species in Southeastern USA.


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The Center for Biological Diversity outdid itself.  Last month, CBD filed with the U.S. Fish & Wildlife Service a Petition to List 404 Aquatic, Riparian and Wetland Species from the Southeastern United States as Threatened or Endangered Under the Endangered Species Act (April 20, 2010).  

In a word, WOW.

The cover letter suggests that the petition is consistent with the premise of ecosystem management and protection, and intends to be "more cost-effective than a species-by-species approach to listing responsibilities."   It is unquestionably true that many species occupy a single ecosystem, and in such cases, an analysis of the one ecosystem can justify the listing of multiple species.  But this petition is not about one ecosystem.  The list of proposed species from scattered states speaks for itself: the Virginia Stone (VA & KY, page 67) Alabama Shad (AL, page 87), Bayou Bodcau Crayfish (AR, page 155), Greensboro Burrowing Crayfish (NC, page 170), Cumberland Dusky Salamander (TN, page 308), Cape Sable Orchid (FL, page 777) and the Miami Cave Crayfish (FL, page 936).  The threats assessment also reveals the lack of any meaningful "ecosystem" approach: coal mining allegedly affects the mountainous white water habitats (pages 38-40), while urban runoff allegedly impacts the slow currents of Florida's rivers (page 381).  The cumulative choice of 404 species -- an obvious reference to the Clean Water Act's Section 404 wetland permitting program -- says it all, conveying the objective of using the ESA to achieve more wetland protection in the Southeastern USA.

Eventually, this pugnacious petition could prove counterproductive, both for the federal agency charged to review it, and for the non-profit who proposed it.

A proposal to list 404 species places a nearly impossible burden on the U.S. Fish & Wildlife Service.  In theory, FWS has 90 days to consider the petition and determine whether it contains sufficient information to warrant further review, and then, if it does, FWS must undertake the more rigorous review to determine whether or not to list each of the 404 species.  That latter review is supposed to be done within a year, and a critical habitat designation should be completed concurrently (or at worst, no more than one year later).  Moreover, if FWS agrees with CBD's petition, it would mean 404 more analyses for 404 different species, because the ESA generally does not consider an ecosystem as a whole; rather, the ESA prohibits take for every species.  And ultimately, if FWS does not get all the analyses done "right" and within the applicable deadlines, then CBD can then file a notice of intent to sue.  (And don't forget, if CBD wins or settles, it can seek attorney's fees too.)

CBD clearly understands the ESA, and how it works.  The petition will attract attention to, and raise the profile of, four hundred and four otherwise obscure species.  Companies and agencies will learn about and offer comments to FWS on the status of those 404 species.  And FWS may even elect to list some of those species as threatened or endangered.  Still, over the long run, CBD could become the victim of its own success.  I worry about whether or not, sooner or later, the ESA will break, weighed down by the procedures and requirements that CBD frequently invokes.  

CBD wants to list 404 species; others will cite this petition as 404 more reasons for ESA reform.

According to the CBD petition, Kirtland's Snake (page 246) a small, nonpoisonous snake species, occupies wet, relict prairie areas, including prairie fens, meadow wetlands, open and wooded wetlands, seasonal marshes, open swamps, and other water associated habitat .  However, because these habitats are increasingly rare, the snake is currently found most often in urban areas: vacant lots near to streams or wetlands provide the closest approximation of their preferred habitat in most regions.  It is currently known in Illinois, Indiana, Michigan, Missouri, Ohio, and Pennsylvania.  Photo of Clonophis kirtlandii from

ESA news: federal family reaches sage grouse deal; scientists reject federal plans for salmon barging; CBD, WildEarth and PLF continue Tribal traditions


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Last month, the U.S. Fish & Wildlife Service announced that the greater sage-grouse warranted protection of the Endangered Species Act, but that a listing was precluded by higher priority species needs.  Environmentalists promptly declared their intent to sue. See AP wire and Center for Biological Diversity press release..  But today, the federal government announced its alternative: Agriculture Secretary Tom Vilsack and Interior Secretary Ken Salazar reached an agreement to support the conservation of greater sage-grouse and sagebrush ecosystems in parts of 11 Western states. See San Jose Mercury News.   "This agreement gives us a framework to prevent further habitat fragmentation and undertake other conservation efforts in partnership with states, tribes, private landowners and other stakeholders." Interior Secretary Ken Salazar said.  The federal announcement also coincides with a push by wind energy interests to increase study of the species.  See The Jamestown Sun (ND).  For more information about the Sage grouse debate, visit The Salt Lake Tribune and

Greater sage-grouse currently occupy 258,000 square miles of the sagebrush ecosystem.  In recent years, the species lost 44 percent of its habitat due to agriculture; urban development; energy extraction, generation and transmission; invasive weeds, pinion-juniper tree encroachment, and wildfire. The human footprint across the area where greater sage-grouse live is large and becoming larger as the country strives for energy independence, agriculture, development and other, often competing uses.  (Caption info from USDA press release, photo from Ruby Lake National Wildlife Refuge.)

The federal agencies announcements related to the sage grouse stand in sharp contrast with recent news from the Pacific Northwest, where the agency efforts to resolve the ongoing disputes over salmonid were rejected by an independent science panel.  The federal government wanted to stop spilling water over the top of four Snake River dams, "and rely instead on barges to carry young salmon and steelhead downstream on their spring migration to the sea."  See AP wire.  But an Independent Scientific Advisory Board -- formed by NOAA Fisheries and the Northwest Power and Conservation Council to provide advice and recommendations -- said that a "mixed strategy" of letting fish migrate naturally through spills over the dams and barging them was preferred.  See The News Tribune (WA).  In a noteworthy historical column this week, WaterWorld describes how The Shoshone-Bannock Indian Tribes began the "salmon wars" by petitioning the National Marine Fisheries Service on April 2, 1990, to list the Snake River sockeye salmon as an endangered species.  "Twenty years ago this month, a small group of Indians in eastern Idaho changed the world in the Columbia River Basin."

Environmental groups continue the Shoshone-Bannock tradition.  The Center for Biological Diversity recently announced a lawsuit alleging illegally delayed Endangered Species Act protection for the Pacific fisher, a relative of the mink and otter "decimated by historic fur trapping and logging of old-growth forests."  See CBD press release.  Similarly, WildEarth Guardians continues to challenging the Service’s failure to federally protect the Mist Forestfly, a case that made news when Wild Earth accused FWS of denying that there is "an extinction crisis" and further accusing FWS of "minimizing the problem of global climate change."  See WildEarthGuardians press release.  The Pacific Legal Foundation continues to serve as a counterbalancing force to these groups.  Earlier today, PLF announced that it had petitioned for removal of the California gnatcatcher from the federal Endangered Species Act list.  See LiberyBlog.  

Unlike PLF and the environmentalists, and despite the coming summer months, Alaska is cooling down -- at least when it comes to the ESA.  Although Alaska Dispatch reports that Sen. Lisa Murkowski recently held a roundtable discussion in Anchorage, "slamming" the Endangered Species Act, KTUU, money for a public relations campaign against the Endangered Species Act has gone unspent.   Maybe Alaska can offer some of the money to FWS to help with the other species needs?

In the news: economic consequences of the Endangered Species Act in the western USA.


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This week offered many examples, especially from the western United States, of the continued tension between the values of the Endangered Species Act, and its raw economic consequences.

Conservationists intend to sue the U.S. Fish & Wildlife Service for their failure to list the sage grouse as a threatened species. See Epoch Times.  But if the species does get listed, it could have significant repercussions for the use of wind energy in the Western U.S.  See Huffington Post.    

In California, changes to regional water management, intended to protect the threatened Delta smelt and losted salmonids, have hit regional agriculture, and the salmon fishery, hard.  See New York Times.  The desperate measures have not prevented the smelt populations from a continued downward path toward extinction.  According to FWS, the species should be uplisted to endangered.  But for now, FWS also said that the status change was precluded by other priorities.  See SFappeal discussing FWS press release.  

In Southern Oregon, Klamath region farmers rioted in 2001 when ESA-mandated protections led to water supply cutbacks.  Today, says the Seattle Times, those farmers are trying to avoid shortages by renting fields served by wells.

Nearby, in Washington State, ESA effects on salmonid species are so significant that the U.S. Army Corps officials in Walla Walla are evaluating the potential for dam breaching throughout the Lower Snake River.   See TheNewsTribune.  

In Alaska, the designation of critical habitat for the Cook Inlet beluga whale spawned more controversy.  Alaskans fear the consequences for fisheries, oil drilling, military activities, and other economic development efforts. See The Peninsula Clarion.  Similar concerns related to the proposed Pebble Mine in Southwest Alaska have Alaskan legislators and officials thinking about hosting a conference on the ESA and its effects.  See Alaska Dispatch. (The state already planned on hiring its own Endangered Species Act lawyer.)

Thanks to groups like the International Crane Foundation and Operation Migration, the whooping crane continues on a path toward species recovery.  As shown in a wonderful series of photos (including the photo above) by blogger and crane-lover Vicki Henderson.  Crane pairs are dedicated to and very protective of their young.

While many of the stories above may seem like old news, with traditional environment vs. economy tensions, sometimes, the lines blur.

In Nebraska, the ESA's protections have helped whooping cranes escape extinction, and birders now pour into the state -- bringing their binoculars and tourist dollars.  But the over-eager photographers sometimes harass the birds, and need to be warned by wildlife officials to keep their distance.  See Omaha World-Herald.  

Lompoc, CA is dealing with another usual ESA-related problem.  Western snowy plover habitat along the shoreline leads to closures of the local beaches.  Unhappy surfers then violate those closures, ignoring the signs, and the impacts to the species.  See The Lompoc Record.   Do California surfers spend as much as Nebraska birders?  

As if all the stories above were not enough, many scientists have suggested that global climate change will increase stress on wildlife, which in turn, will increase economic tensions, too.  Tackling the 800-pound gorilla, the U.S. Geological Survey announced that it will be studying the effects of climate change on wildlife.   See USGS Press Release. They plan to study alterations in Florida’s ecosystems, potential impacts on Great Lakes’ fish, sea-level rise impacts on San Francisco Bay marshes, and the effects of melting glaciers on Alaska’s freshwater coastal systems.

And finally, an oldie but goodie for environmentally-minded people who spent the past decade hibernating... bald eagles are back from the brink of extinction!  See Washington Post.  Expanded habitat includes Cape Fear, North Carolina, and Litchfield, Connecticut.  See StarNews Online, and Litchfield County Times.

ESA news: whether the species are elephants or polar bears, turtles or smelt, ESA implementation debates rage on.


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Domestic political rhetoric about the Endangered Species Act almost seems commonplace -- as with a recent speech by Wyoming Rep. Colin Simpson, who is campaigning for Governor by promising to challenge the federal government’s use of the Endangered Species Act to block energy development.  See Green River Star.  But the ESA can trigger powerful foreign affairs rhetoric, too.  For example, protection of endangered elephants, and the cessation of the illegal ivory trade, has long been a subject of international diplomacy.  See Voice of America.  But this week, the listing of the polar bear as a threatened species led to debates over whether the species should also be regulated pursuant to the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES).  See Washington Post and Christian Science Monitor.  Beluga sturgeon fared better (or worse, depending on your perspective) when they were reclassified in the Caspian Sea as "critically endangered."  And just yesterday, the ESA, the State Department informed Congress that Mexico lost its certification to send wild-harvest shrimp to the United States, because its trawls and fisheries no longer met standards requiring Turtle Excluded Devices (pictured below) to protect endangered and threatened sea turtles.  See also, Business Week.  


When it comes to turtles, however, North Carolina fishermen expect to cause fewer problems, because its Marine Fisheries Commission adopted stricter measures to address interactions with sea turtles.  See Jacksonville Daily News.  But Floridian fishermen and other interest groups are debating the merits and consequences of the recent NOAA decision to list loggerhead turtles (pictured above) as a threatened species.  See Florida Today.

ESA debates rage in California, too.  With the traditional bi-partisan spirit of the San Joaquin Valley politicians destroyed by the health care debate, Republicans are forcing a local Democrat to choose between his farmer constituents, or his environmental principles, by proposing to waive the ESA limits on Bay Delta water pumping.  See Miami Herald.  Sadly, that legislative proposal ignores a recent  National Academy of Sciences peer review report.  After considering the raging controversy over Delta smelt and salmonids in the Sacramento Bay-Delta, the independent science panel concluded that the rigorous species protection measures were "scientifically justified."  See LA Times.  As a result of the report, Senator Dianne Feinstein (D-CA) dropped her amendment to override the Endangered Species Act, see Huffington Post, and the Center for Biological Diversity declared vindication, while California Farmer recognized that the farmers attempted political push had backfired on them (but obviously not for long...)

Finally, one last piece of Keithinking.  ESA-watchers might recall a letter and press release, two weeks ago, about the implementation of the ESA's critical habitat provisions.  50 different groups (led by the usual suspects such as the Center for Biological Diversity) called for reform.  See  Nossaman LLC.  As the Greenwire article explained, quoting CBD, "The courts are beginning to reject efforts to limit adverse modification, so I think the administration is starting to recognize they need to address it.  The courts have been very clear that adverse modification is a recovery-based standard."  If their viewpoint prevails with the Obama Administration, the result could be much larger critical habitat designations in the future, and increased efforts to prevent any modifications at all within that critical habitat.  But if the viewpoint does not prevail through rulemaking, then the legal community can start preparing for the inevitable next wave of ESA-based litigation -- as evidenced by the calls for public comment seeking expanded critical habitat for Bull Trout and the lawsuits over the failure to designate adequate critical habitat for Florida panthers, black abalone.

ESA news: crimes, coral and Secretary Udall


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Most of us knew that crime does not pay, but not the owner of The Hump, an LA sushi restaurant now facing charges for violating the Endangered Species Act.  Selling whale meat briefly padded the bottom line, but the restaurant closed in the face of protests (and prosecution).  See Nation's Restaurant News, The Argonaut, and BigPondNews.  Elsewhere in the category of "you should have known better," two Kentucky men were sentenced for killing more than 100 Indiana bats in Laurel Cave by crushing them with rocks, flashlights and feet, while a former New Jersey town mayor also found himself facing an indictment for removing and relocating protected bog turtles from his property.  See and

While the criminal stories, as they often do, gained disproportionate attention, aquatic endangered species received much of the recent news on the civil side of ESA implementation.  The once absurdly abundant Pacific smelt has now been listed as a threatened species in the Northwest, see Oregon Live.  And eighty-two different coral species might not be far behind, as NOAA is considering the possibility of listed these species -- along with all the potential consequences of using the ESA as a back-door mechanism for regulating climate change.  See AP news story in MySanAntonio.  


Lastly, a farewell to Stewart Udall, a former U.S. Secretary of the Interior who died this week.  Photo above from and Harpers Ferry, National Park Service Historic Photograph Collection (1965).  Mr. Udall was a leading advocate for the passage of the ESA.  See OregonLive and the SanteFeNewMexican.  In his words: "We cannot afford an America where expedience tramples upon aesthetics and development decisions are made with an eye only on the present."  In addition to his ESA legacy, Mr. Udall and his brother left behind the Udall Foundation, and organization dedicated to "Civility, Integrity, and Consensus."  Imagine that!

ESA news: two major lawsuits announced on pesticide regulation and military effects on right whales; while two states are becoming regulatory battlegrounds.


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Alaska wants less regulation based on the Endangered Species Act -- much less.  According to the, Alaska's Attorney General has budgeted $1 million next year to pay for a full-time attorney to focus on the Endangered Species Act, noting that regulations protecting polar bears, seals, greatly increase the cost of doing business in the state.

The Center for Biological Diversity, of course, disagrees.  CBD announced its plans to file a new lawsuit against EPA, alleging that 400 different pesticides are insufficiently regulated, harming 887 endangered species.   See LA Times and Center for Biological Diversity press release.  CBD's notice of intent to sue says EPA must engage in Endangered Species Act consultation with the wildlife agencies within the next 60 days -- an obvious impossibility given the scope of the case and numbers of variables.  Nevertheless, even though EPA already has an Endangered Species Protection Program for pesticides, it previously settled a similar lawsuit, and established new regulations, related to pesticide impacts on salmonid species in the Pacific Northwest.  See NOAA information page.  If this lawsuit is successful, it will inevitably increase the difficulty of pesticide approvals.  In fact, a recent NOAA biological opinion found that the registration of carbaryl and carbofuran was likely to jeopardize the continued existence of those salmonid species.  See also, prior ESA blawg, and pesticide threats case study.  

The pesticide lawsuit follows a successful, savvy and and well-used pattern: (1) strategic use of the ESA by environmental groups (2) to obtain a judicial mandate (3) changing or enjoining a previously unregulated or lesser-regulated activity (4) to benefit protected species, and, finally, (5) repeat as necessary.  The U.S. Navy has experienced the same pattern.  When the first lawsuits were filed by environmentalists seeking to stop military actions due to effects on protected species, it raised eyebrows and ire.  See prior ESA musing, and prior ESA caselaw summary.  Those lawsuits are now old news.  Earlier this week, environmentalists filed a lawsuit against the U.S. Navy over its decision to build an Undersea Warfare Training Range next to the South Georgia and North Florida waters serving as the only known calving ground (and critical habitat) for the critically endangered North Atlantic right whale.  See ENS Newswire.  The lawsuit was predictable, based on the small numbers for this species -- 350 animals -- and its status as endangered for over 35 years.

This photo of a North Atlantic right whale pod comes from the Jacksonville (JAX) Range Complex Environmental Impact Statement.  Recognizing that Naval warfare training activities are underway in and adjacent to the critical habitat area during the calving season, the EIS discusses the Navy's measures taken to protect right whales, including: on-board lookouts, using the slowest safe speed that is consistent with essential mission, training, and operations, maneuvering to keep at least 500 yards from any observed whale, funding aerial surveys during the calving season as part of the Early Warning System, and comprehensive training related to whale protection.

Given the right whale lawsuit, and other regional news, even some usually green-minded Floridians may sympathize with the frustrated sailors and Alaskans as the Endangered Species Act continues to increase Florida's regulatory burdens.  In addition to the new right whale lawsuit discussed above, recent ESA-related events in Florida include the pending petition on Florida panther critical habitat, ongoing litigation over the Cape Sable seaside sparrow, potential listing of the gopher tortoise, listing of the small tooth sawfish and critical habitat, a decision not to revise staghorn coral critical habitat, and revising manatee critical habitat.  Now, based on this week's news, environmental groups would like to add 84 more species to the list.  WildLaw in St. Petersburg petitioned the Interior Department and the U.S. Fish and Wildlife Service to list the Florida bonneted bat.  See and prior ESA blawg.  The Center for Biological Diversity is demanding a decision from NOAA, and threatening litigation, on the listing status of 83 species of coral.  See Washington Post.

And one final Florida-centric thought: with the recent cold snap stunning an astounding 5000 sea turtles, and the species continuing habitat decline, more litigation related to those species may be coming soon.  See OnEarth.

Logical, illogical, or ecological? Food for thought on environmentalist ratings and rantings.


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Earlier today, the Center for Biological Diversity issued its press release giving the Obama Administration a "C" grade for its first year of handling of endangered species, climate, energy, public lands and oceans.  According to the CBD press release "While the Obama administration has not shown the ideological opposition to environmental protection of the previous administration and has taken a number of positive steps, the administration has fallen far short of delivering the promised "change" in overall environmental policies."  In discussing the Endangered Species Act, CBD offered the following analysis, quoting Noah Greenwald, the CBD endangered species program director:
"On endangered species, the Center gave the administration a solid C, as for every positive action there seemed to be a negative action of equal scope.  For example, the Obama administration rescinded regulations passed in the final days of the Bush administration that would have gutted enforcement of key provisions of the Endangered Species Act, but retained a rule weakening protection for the polar bear.  The Obama administration also moved forward with a Bush initiative to remove protections for the gray wolf, and has only listed two new species as endangered, which is the fewest protected in the first year of any administration since the Reagan administration.  The Obama administration has not prioritized protection of the nation's endangered species, meriting their grade of a C.  After the dark days of the Bush administration, wholesale reform of the U.S. Fish and Wildlife Service's endangered species program was needed and this has simply not occurred."  
In other words, after years of screaming at an ecotone-deaf Bush Administration, CBD has a receptive ear in President Obama, and they ... continue screaming?  Taking a cynical, "all publicity is good publicity" viewpoint, CBD is making news, so they must be doing quite well.  (After all, they got ink here, right?)  But then again, here are my three food-for-thought questions:
  • Sensible strategy, or self-defeating?  Is CBD performing a valuable role as an outlier in the world of interest group politics, shifting the debate to help other environmental groups seem moderate?  Or is CBD a poster-child for a clueless environmental movement that bites the hand that feeds it?
  • Does every action have an equal and opposite reaction?  Regardless of whether you believe CBD is a clever strategic outlier, or just an ineffective radical, does their approach simply spawn counterbalancing techniques by groups like the Pacific Legal Foundation, and others?  
  • Does it work?  Do continuous criticisms compel politicians to revisit their own actions, or does it make political leaders more likely to reject and ignore the critics altogether?  

Alas, in this complex world of interest group politics and intense partisan politics, I suspect the answer is (D) -- "all of the above."   What do you think?

Humorous and outlandish protests are not limited to the United States. These three creatures were protesting climate change and poverty issues in Perth, Australia.  Photo by Chalpat Sonti (WA Today) available at

Is Obama too green, or not green enough?


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Recent news articles demonstrate a clear theme: the Obama Administration is rebutting the "just like Bush" critique.  "In a sharp reversal of its predecessor's position," the Arizona Daily Star begins its article about how the Obama Administration will protect the endangered jaguar's prime habitat and develop a jaguar recovery plan, must of which is in Mexico.  See also ESAblawg on prior jaguar sightings within U.S. borders.

The Seattle Times reports that the decision to quadruple habitat protections for the bull trout, by designating 23,000 miles of streams and other waterbodies in Oregon, Washington, Idaho, Montana and Nevada as critical habitat, is "another reversal of Bush administration Endangered Species Act policy."

Still, the environmental group WildEarth Guardians is not convinced that Obama means it.  They filed a petition to list the Texas Kangaroo Rat, as ABC and AP report, and the group plans to file similar petitions for the spot-tailed earless lizard, a fish called the prairie chub, an insect called the Platte River caddisfly and the Scott's Riffle beetle, all as "part of the group's plan to file petitions and lawsuits over 36 days to persuade the Obama administration to make wildlife protection a priority."  The LA Times also reports that if the Department of Agriculture does not start regulating commercial bumble bees, the Xerces Society intends to seek ESA protections for the insect.

But the Governor of Idaho is a believer in the greening of the Obama Administration, and he's bright red angry about it.  As ABC and AP report, Gov. C.L. "Butch" Otter used his annual State of the State speech to highlighted his fight with FWS over protections for a rare desert plant, slickspot peppergrass.

Of course, the debate will never end, and some groups (on both ends of the spectrum) will never be satisfied -- no matter what.  Still, the February 26 deadline for a decision on the listing of the sage grouse could prove to be a turning point in how people view the Obama Administration.  Some folks in Wyoming and Nevada are concerned that listing of the bird will impair the implementation of green energy technology, like wind farms.  See Reuters.

It's not easy being green.


ESA update: News, Musings, Federal Register announcements and other holiday happenings


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Merry Christmas and Happy New Year, ESA blawg readers.  It was good timing for a vacation from blogging.  As usual, the Thanksgiving to Christmas period was fairly calm on the Federal front, with only a small number of FWS announcements:
  • FWS found that listing the black-tailed prairie dog as either threatened or endangered is not warranted, 74 Fed. Reg. 63344 (Thursday, December 3, 2009). In its analysis, FWS states that "the magnitude and imminence of threats do not indicate that the blacktailed prairie dog is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout its entire range...  (and despite plague and climate change) and resulting impacts on the species, occupied habitat (a surrogate measure for population trends and status) in the United States has increased by more than 600 percent since the early 1960s. The species has proven to be quite resilient."
  • FWS found that find that listing the Sprague’s pipit, one of the few endemic birds of the North American grasslands, may be warranted. 74 Fed. Reg. 63337 (Thursday, December 3, 2009).  The analysis noted that native habitat is disappearing, and "there are no regulatory mechanisms that govern conversion of native grassland to cropland when migratory birds will be impacted."
  • FWS also proposed to designate 13 miles of stream habitat as critical habitat for the vermilion darter. 74 Fed. Reg. 63366 (Thursday, December 3, 2009).  The species is only known in parts of the upper mainstem reach of Turkey Creek and four tributaries in Pinson, Jefferson County, Alabama.  Suitable streams have pools of moderate current alternating with riffles of moderately swift current, and low water turbidity.


    The judicial arena was somewhat more active, the long-awaited decision in the epic, nine-year old Ringling Bros. case, ASPCA v. Feld Ent't, 03-2006 EGS, (D.D.C.) was abundantly unfulfilling.  Avoiding the thorny substantive issues relating to whether a circus commits an ESA-regulated take through its elephant treatment, Judge Sullivan held that the environmental groups lacked standing. See Washington Post.  Discussing the ex-trainer witness and plaintiff, The court found that "Mr. Rider is essentially a paid plaintiff and fact witness who is not credible, and therefore affords no weight to his testimony." (Then again, this conclusion is remarkable in that it shows the lengths to which some animal rights groups have gone to establish a basis for their lawsuits.  Could a motion for sanctions and attorneys' fees be forthcoming?)  For outstanding coverage of the case and trial, visit Endangered Species and Wetland Report.  Photo of a Ringling Bros. elephant and trainer using a bullhook from The Elephant Sanctuary.

    Another noteworthy decision was Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. 09-1519-RWT, (D. Md.), in which a wind energy project in West Virginia was stopped because of concerns over Indiana bats.  The energy company, according to the Judge, had only itself to blame for its failure to obtain incidental take coverage for its impacts to species.  "Sadly, defendants' environmental consultant viewed formal communications from the FWS through rose-colored glasses and simply disregarded what he was told repeatedly," the judge said.  The Beech Ridge case clearly demonstrates the potential power of the ESA to stop projects and actions.  

    The Indiana bat is hardly the only species that serves as a source of leverage for some interest groups.  The Center for Biological Diversity and Turtle Island Restoration Network filed a formal notice today that they intend to sue the Obama administration for illegally delaying protection of penguins under the Endangered Species Act, citing the harms of climate change and industrial fisheries.  And from the other side of the political spectrum, but recognizing the similar potential for ESA regulation of western land management, the Pacific Legal Foundation and Riverside County Farm Bureau sued to force action by the FWS on the Kangaroo rat delisting petitions filed in 1995 and 2002.  

    PLF unquestionably enjoyed FOX's "fair and balanced" three-part series on property rights, entitled Not So Private Property?: Endangered Species Pose Problems for Landowners.   The article states that "According to the act, the government can dictate how private property is used if it's home to an endangered species -- and can even require landowners to help pay for programs that preserve certain endangered wildlife."  Sadly, but perhaps predictably, FOX neglected to mention that the requirements to pay for protective measures are only triggered when the landowner takes an action that harms a listed species, which in turn triggers the requirements of the ESA.

Stimulus funds save panthers from palm trees, Judge Redden pleased with progress on salmon species management, but some environmentalists still concerned.


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Panthers vs. Palm Trees?  Yup.  And the panther won -- thanks to stimulus funds! -- as explained by Mother Nature Network, relying on information from the U.S. Fish & Wildlife Service: "If you like your conservation efforts served with a nice dusting of irony, consider what’s happening at the Florida Panther National Wildlife Refuge near Naples, Fla. Workers there are about to start tearing down dense stands of the official Florida state tree, the cabbage palm, in order to benefit the official state animal, the endangered Florida panther, that lives in the refuge...  the fact is that the cabbage palms have grown so thick in places on the refuge that they are crowding out other plants that are necessary food for deer. That means the deer move on to find better feeding areas, and the panthers are deprived of the deer they need to prey on.  So the U.S. Fish and Wildlife Service, which manages the refuge, hired Wildland Services, Inc., of Moore Haven, Fla., to cut down the invasive cabbage palms on more than 1,700 acres inside the refuge. The $171,000 contract is being funded by money from the American Recovery and Reinvestment Act, popularly known as stimulus funds."  (Hat tip to Phil Kloer, USFWS, photo below from  See also, Cape Coral Daily Breeze.

Despite the use of stimulus funds for such environmental projects, eco-advocates from WildEarth Guardians and the Center for Biological Diversity remain unhappy with the Obama Administration, the New York Times reports.  "There is no longer a clear ideological opposition to endangered species, but they have not exactly made it their priority, either," the Gray Lady quotes Noah Greenwald, CBD spokesperson, to say of the Obama administration.  For a similar perspective, see the Tallahassee Environmental News Examiner.  The slow listing decisions are not the only ESA-related (in)actions upsetting the green-minded.   Although recently rejected by a federal judge, see AP, efforts by the Federal government to delist the grizzly bear remain a sources of significant environmentalist angst.  See criticisms in Legal Planet, but also note the support previously offered by National Wildlife Federation

Then again, perhaps the critics should consider themselves fortunate to have any White House support at all.  In contrast, the Massachusetts (!) legislature is debating a bill to dramatically reduce project review or permit requirements pursuant to the Commonwealth's Natural Heritage and Endangered Species Program.  See the Valley Advocate.  

But when it comes to executive branch efforts related to endangered and threatened salmonid species in the Pacific Northwest, at least one rather important person -- U.S. District Court Judge James Redden -- is pleased with the administration.  At a hearing on Monday discussing operation of the Federal Columbia River Power System, the Judge told Jane Lubchenco, administrator of the National Oceanic and Atmospheric Administration, "I think you've done a good job."  See story in The Idaho Statesman, official statement by Ms. Lubchenco, and prior ESA blawg discussing the Federal government's filings.  

Scientists are becoming more adept at counting the secretive Florida panther, see, although there are four fewer of the big cat due to vehicle collisions in October and November.  Indeed, vehicle collisions are an enormous problem for the species.  Despite a population estimate of less than 100 panthers, 12 have been killed in 2009 alone.

Sierra Club warns of climate change effects on Florida panther, calls for critical habitat designation


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The Sierra Club today is calling on the U.S. Fish and Wildlife Service to help the Florida panther survive global warming by protecting its habitat, the non-profit organization announced in the Press Room today.  "In many ways, the Florida panther is like the polar bear of the South. Because of its low-lying and exposed habitat, the panther is extremely vulnerable to global warming," said Sierra Club Representative Frank Jackalone. "In order to survive sea level rise and other impacts of climate change, panthers need to be able to migrate to new ground."  In other words, Sierra Club has joined the Center for Biological Diversity, who previously filed a petition to designate 4,860 square miles – roughly 3 million acres – to be protected as critical habitat in southern Florida.  


Florida panthers have appeared in other news reports this month.  Coincidentally,  earlier today, an anonymous caller reported seeing a dead Florida panther by the side of the Florida Turnpike near Yeehaw Junction -- more than 150 miles north of where most panthers live -- but when Florida Fish and Wildlife Conservation Commission staffers checked out the tip, they discovered a decapitated animal.  Although the big cat appeared to be hit by a car, FWC posted a reward for information leading to an arrest.  As noted on Big Cat Rescue, traffic presents a continuing threat to the species.

Still, despite today's unfortunate incident, long-term hope remains for the species.  The U.S. Army Corps announced the award of a $53-million construction contract Nov. 4 for the Picayune Strand Restoration Project as part of Everglades restoration in Collier County, Fla.  "This latest step by the Corps underscores our federal commitment and sets the future of the Picayune Strand in motion. Our endangered Florida panther and many other species will benefit," said Paul Souza, field supervisor of the U.S. Fish and Wildlife Service's South Florida Office. "Four decades ago, this area was slated to become a suburb of Naples. But today, because of leadership shown by our Everglades partnership, we're one step closer to achieving its restoration potential."

For more information about the potential effects of global warming and sea level rise on the Florida panther, visit an Earthjustice project, and Florida Wildlife Commission, On the Front Lines of Climate Change, and the Select Committee on Energy Independence

Photo above from U.S. Fish & Wildlife Service, available online from University of Florida

ESA in the news: brown pelicans delisted, and other hurts-so-good news


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Secretary of Interior Ken Salazar and Sen. Mary Landrieu of Louisiana are celebrating the delisting of the brown pelican, a bird species with a global population estimate of more than 620,000 birds. See Reuters.  Is it all because of the ESA?  Probably not.  The banning of DDT probably had far more to do with the bird's recovery.  See Investigate West, and prior ESA blawg on the delisting of the bald eagle.   Nevertheless, facts are facts, and recovery is recovery.  According to FWS draft delisting rule, "numbers of successful nests and fledglings produced annually since 1993 do indicate continued nesting and successful fledging of young sufficient to sustain a viable population in Louisiana."  Elsewhere along the U.S. Gulf Coast, FWS says that "brown pelican populations, while experiencing some periodic or local declines, have increased dramatically from a point of near disappearance in the 1960s and 70s."  

Somehow, when it comes to the Endangered Species Act, good news seems to leave people feeling bad.  Not everyone found cause for celebration with the pelican announcement.  OCweekly, also quoting the Center for Biological Diversity, expressed fears that climate change will continue to threaten the pelicans.  Others didn't stop with criticisms of the pelican delisting. Mongabay reports that "Obama slower than Bush in protecting America's endangered species." In a press release, Noah Greenwald, endangered species director at the Center for Biological Diversity, also said that “protection of only two species in 10 months reflects a failure to enact substantial reforms in the U.S. Fish and Wildlife Service.”  Mongabay even added a supplemental note bemoaning other species delistings.  But in contrast, Legal Planet noted that "the success of the ESA should never be measured by the number of species delisted."  

As a result of the ban on the use of DDT in the United States, as well as complementary conservation efforts, the species has made a strong comeback and, in view of its improved status, has been removed from the list of threatened and endangered species throughout its range. The U.S. Fish and Wildlife Service now estimates the global population of brown pelicans at 650,000 individuals.  Photo and caption from FWS fact sheet.

Although the brown pelican delisting represents one less species facing extinction, environmental groups have filed numerous petitions in the past few weeks to compel increased numbers of ESA-protected species.  For example, NOAA, Seacoast Online and the Boston Herald say that the Atlantic Wolffish is ugly, tasty, but not endangered, but the Conservation Law Foundation still disagrees, fearing the consequences of excessive fishing, so legal action may be coming soon.  See CLF Petition.    Oceana is also pushing for more fishery regulation, and launched a new campaign to "get sea turtles off the hook" by regulating fishing gear.  See Ecorazzi.   And the Center for Biological Diversity has petitioned the National Marine Fisheries Service to protect 83 imperiled coral species in U.S. waters under the federal Endangered Species Act due to the threats of climate change and ocean warming and acidification.  See LA Times and CBD Petition.

Of course, the Federal Government already has plenty of work to do, including the U.S. Department of Justice's continuing efforts to defend the Fish & Wildlife Service's established protections for the gray wolf and polar bear.  Wyoming officials are still torqued over FWS's rejection of its wolf management plan and consequential decision to leave the species populations listed in their state.  See Salt Lake Tribune.  Alaskan officials fear that the listing of the polar bear as a threatened species will impair development.  Alaska Attorney General Dan Sullivan warned that the listing could turn Alaska into “the world’s largest zoo," as quoted in the New York Times, and Governor Parnell told Radio Kenai that his State will continue to oppose the listing.  Other states are less hostile to the ESA.  Kentucky officials were cautious about the naming of the Kentucky glade cress and rabbitsfoot mussel as a formal candidate for listing, see Louisville Courier Journal, whereas officials in Hawaii seem to have embraced the benefits of the ESA, and actively encouraged Congress and President Obama to approve $3 million in appropriations dedicated to protecting listed bird species in Hawaii.  See American Bird Conservancy announcement.    

And, as usual, new ESA-related controversies are brewing all across the nation.  NOAA's top-ranking official, Jane Lubchenco, announced that she will attend the Nov. 23 U.S. District court hearing in Portland, Oregon, after which Judge Redden is expected to reach decision in the long-running litigation over how to run hydroelectric dams while still protecting salmonids in the Columbia Basin.  See Seattle Times.   NOAA is also evaluating whether to downlist the humpback whale, because surveys estimate population growth from fewer than 5,000 in the 1960s to 60,000 or more today. See Wall Street Journal.   FWS can also expect its share of work in the coming months. Bull trout populations have fallen sharply in Montana, says the Flathead Beacon.    The San Francisco Recreation and Park Department elected to keep part, but not all, of the Sharp Park Golf Course, a prime piece of public recreation real estate located on a coastal watershed that also serves as a habitat for the endangered San Francisco garter snake.  See San Francisco Chronicle.   Bullfrog removal, needed to save the California red-legged frog, is spawning local opposition, reports  And in Pima County, Arizona, the proposed Rosemont copper mine -- for which a biological opinion is underway -- is spawning quite a negative public reaction, leading to an early op-ed by the National Mining Association. See Arizona Star.  

ESA news: dollars, cents, and undoing past nonsense


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 “FWS represents only about 7 percent of total federal expenditures related to the Endangered Species Act,” John Platt recently explained in his Scientific American article reviewing a 2007 U.S. Fish & Wildlife Service report on ESA expenditures.  “The Federal Highway Association spent $34,977,711. The Army spent $45,093,322, while the Army Corps of Engineers spent $211,976,370. The Department of Energy's Bonneville Power Administration spent a whopping $533,223,325. Even the Bureau of Indian Affairs spent $75,000.”  

Predictably, salmonid species were also a big part of those 2007 expenditures (costs now exceed $1 billion annually.)  And salmonids will continue to be big bucks in 2009-2010, as demonstrated by the estimated $200 million cost for tearing down four dams along the Klamath River.  See New York Times  And don't forget about the potentially massive costs of altering the hydroelectric dams associated with the Federal Columbia River Power System and the Columbia and Snake Rivers.  See Heartland Institute article.  

So is all the money well spent?  Fiscal conservatives will soon point to evolving science, and Matthew Preusch’s article in The Oregonian explaining that “some salmon are evolving to survive in Northwest rivers that have been radically altered by dams.”  Then again, these types of watershed restoration projects probably deserve high fiscal prioritization, given the benefits not only to salmonids but also to the many other riparian dependent species.  In contrast, many other species receive disproportionate dollars and attention due to their “charismatic megafauna” status, and thanks to the lawyers who represent them, a point emphasized by's protest on the excessive funding for sea lions and the UK Guardian's discussion of pandas in zoos.  

But for the less-financially minded people who want to protect species, no matter what the cost, their lawyers have good reason to turn to the judiciary.  Sure, on rare occasion, governmental action is motivated by media attention, as with the recent efforts to control the problem of invasive snakes.  See U.S. Geological Survey report  and related article in Wired.    See also, Paw Talk article on Exotic Consequences.  (And immediate action is certainly needed, as the USGS report states that “the greatest environmental impact of invasion by giant constrictors would be predation on endangered species, either via further endangerment or outright extinction.”)  Sometimes, government is also motivated to fix its own mistakes, as with the ongoing effort by the Department of Interior to do a mea culpa for the abuses by a former Bush Administration official.  See recent Denver Post about how the "feds take a fresh look at once-rejected protections," and prior ESA blawg story and links.  But much too often, litigation settlements and court-orders determine the docket of ESA-related actions taken by the Federal government, as the recent news coverage shows, once again:  
  • Wolf hunting.  Citing the loss of hunting opportunities and the “threat of problem wolves,” the National Rifle Association is asking a federal court judge to allow the group to join a lawsuit regarding the removal of wolves from the list of animals protected under the Endangered Species Act in Montana and Idaho.  See the Helena-based Independent Record.  (Evidence suggests that wolves are only a limited threat to livestock; for example, a Minnesota news site reported today that a federal program that reimburses Minnesota farmers for livestock lost to wolves will receive $700,000 this coming year.)
  • Polar bear critical habitat.  Polar bears remain the iconic species of global climate change, and with much litigation underway, the FWS rulemaking effort to establish critical habitat for the species continues to garner national attention, including a recent New York Times story.   The proposed rule is currently undergoing review within the White House Office of Management and Budget.
  • Listing penguin species.  In another Scientific American article,  John Platt discusses the plight of the penguin, and the imminent lawsuit planned by the Center for Biological Diversity to force a decision on the previously proposed listing of the species (a proposed made by the Bush administration).  See also, ESA blawg.
  • Yellowstone Grizzly bear listing status.  In September, Judge Malloy reversed a FWS judgment call and concluded that Yellowstone grizzly bears should retain their status as listed species, because “promises, or good intentions for future actions” were “unenforceable and non-binding,” and because whitebark pine nuts, a key source of bear nutrition, were in decline.  See New York Times blog.
  • Leatherback sea turtle critical habitat.  Oceana sued NOAA for failing to designated critical habitat for endangered leatherback sea turtles, seeking more protection for a broad swath of ocean feeding areas and migration routes, and ensuring additional scrutiny of harm to turtles from offshore wind and wave energy, coastal power plants, or pollution from agricultural runoff.  Under the terms of a settlement agreement, an initial decision is expected by December 4, 2009.  See AP story.   But the Sarasota Herald Tribune also notes that 2009 also marked a dismal nesting year for loggerhead sea turtles, continuing a downward trend.

Photo of a leatherback turtle from Carl Safina: Hope and Inspiration for the Oceans.

ESA news: once cold, now hot; and once wet, now dry.


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Arctic and polar regions continue to be hotspots for Endangered Species Act news. reports that theInternational Fund for Animal Welfareon Tuesday filed a petition with the U.S. Fish & Wildlife Service to protect two North Pole caribou species under the Endangered Species Act.  The species population has declined 84 percent since the 1960s.  The UK Guardian also reports on the potential for the Pacific walrus to join the caribou as a listed species, and today, the Center for Biological Diversity reported that "Arctic sea ice has reached the third-lowest level ever recorded, and up to 200 walruses, which appear to be mostly new calves and yearlings, have been reported dead near Icy Cape on the north coast of Alaska."  Meanwhile, despite its status as a threatened species pursuant to the ESA, Canada still allows trophy hunting of polar bears, a fact NRDC is trying to change using the Convention on International Trade in Endangered Species.  And the DailyGreen observes that while the polar bear, walrus and ribbon seal all struggle, the Pacific brant, a small dark goose, has stopped spending winters exclusively in Mexico and other temperate climates, and now is spending time in Alaska well past its traditional nesting season.

Despite their decline, and perhaps because of it, polar bears are a tourist attraction.  Photo by Tommy Miles from the Wataway News Online.

In another story about transformations, the ongoing challenges of water management in the Sacramento Delta received much conservative attention last week.  The American Spectator declares that due to the Endangered Species Act, "It is little exaggeration to say that the farmers of the most valuable farming region in the nation are facing extinction."  Equally displeased with the man-made drought in the Sacramento Delta, the Wall Street Journal editorial wrote that "tens of billions of gallons of water from mountains east and north of Sacramento have been channelled away from farmers and into the ocean, leaving hundreds of thousands of acres of arable land fallow or scorched.  For this, Californians can thank the usual environmental suspects, er, lawyers."   And one engineer, in a thoughtful editorial in The Desert Sun, asks a simple question: how much water is really needed for the fish?  "We can't be expected to absorb the cost of providing an unlimited amount of water to the delta without knowing the benefits. This is asking too much of the people and environment of California."

Obama Administration announces "insurance policy for the fish" in FCRPS salmonid litigation


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In May 2009, U.S. District Court Judge James A. Redden appeared ready to rule against the Federal Defendants in the ongoing litigation over the Federal Columbia River Power System (FCRPS), and its impacts upon salmonid species.  As explained in a prior ESA blawg, the Judge's May 2009 letter to the parties represented an unusual acknowledgement of political reality, and "gave the Obama Administration an opportunity to take another look at the circumstances, and to reconsider the current course" that was reflected in the 2008 Biological Opinion (BiOp) -- the latest in a series of challenged agency actions.  The new administration seized the opportunity.  The new political leadership from the federal agencies, as well as the White House Council on Environmental Quality, reviewed the existing science, BiOp and legal issues, conducted site visits, held many internal briefings, and even listened to the viewpoints of the parties to this litigation.  The result was yesterday's announcement of a new Adaptive Management Implementation Plan (AMIP).  See  As explained in a recent Court filing, using the reasonable and prudent alternative (RPA) provisions of the BiOp, the AMIP:
  • Immediately accelerates and enhances particular RPA actions;
  • Enhances research, monitoring and evaluation (“RM&E”) to increase and improve the data and analytic tools available to gauge salmon and steelhead status and to inform responses, if the fish are declining;
  • Establishes new biological triggers that, when exceeded, will activate near- and long-term responses to address significant fish declines;
  • Identifies and establishes the process for implementing those near- and long-term responses if a trigger is exceeded; and
  • Includes a wide range of specific rapid response and longer-term contingency actions, including the potential for John Day drawdown and lower Snake River dam breaching.
Notably, if the significant decline triggers are exceeded, the Federal agencies could implement a number of "rapid response actions" to reduce the take of salmonid species, including predation management to reduce impacts from sea lions, avian predation, and sport-fishing, increased restrictions on harvest from river and ocean fisheries, or changes to hatchery management.   For an overview of the AMIP, click here.

Formally responding to the letter from Judge Redden, the U.S. Department of Justice also filed a document resembling a traditional summary judgment brief, explaining the AMIP in detail, and asking the Court to grant summary judgment to the Federal Defendants:
The Administration appreciates the Court’s patience in allowing an in-depth review of the FCRPS BiOp to occur. After this review, the course is clear. The FCRPS BiOp as implemented through the AMIP meets the requirements of the ESA, and is a significant step forward for listed salmon and steelhead in the Columbia and Snake River basins. Our focus for the future should be on implementing actions to benefit listed salmon and steelhead through the BiOp's collaborative and adaptive management processes, instead of diverting limited resources to perpetuate the cycle of litigation that has plagued this region for over 15 years. It is time to put the litigation aside and allow the States, Tribes, and this new Administration to work for salmon and steelhead. The Court should grant Federal Defendants’ motion for summary judgment.

Photo of orca eating salmon from

KEITHINKING: While the blogosphere seems to be digesting the announcement, news reports suggest that the litigation is far from over.  Generally supportive of the proposal, the Editorial Board at Oregon's The Stump says its time to get the issue out of the courtroom, and the lead to the AP wire story calls the approach "a tougher conservation plan for the Pacific Northwest that includes monitoring for climate change and possible dam removal."  However, in a potential kiss-of-death for the environmentally-minded, The New York Times says that "Obama follows Bush" and that the AMIP "affirmed basic elements of a recovery plan set forth last year by the Bush administration."  Echoing the Gray Lady,the The Los Angeles Times, reports that "some conservationists aren't satisfied."  While the Northwest River Partners, a voice for many business-oriented perspectives, called the plan expensive, but actually beneficial to the fish, EarthJustice seems ready to call the AMIP a complete failure. has returned to "tear down the dams" editorials, but in fact, the AMIP actually acknowledges that breaching the dams could be a long-term option, though certainly NOT a preferred option:
One Long-term Contingency Action in the event there is a significant decline in the status of a Snake River species, is a science driven study of breaching one or more of the lower Snake River dams. This is considered acontingency of last resort and would be recommended to Congress only when the best scientific information available indicates dam breaching would be effective and is necessary to avoid jeopardizing the continued existence of the affected Snake River species, taking into account the short-term and long-term impacts of such action. Additionally, a study of lower Snake River dam breaching will also have to consider the federal government’s Treaty and Trust responsibilities to Indian Tribes, and compliance with other statutory and regulatory requirements. It is reasonable to study breaching of lower Snake River dam(s) as a contingency of last resort because the status of the Snake River species is improving and the 2008 BiOp analysis concluded that breaching is not necessary to avoid jeopardy. In addition, breaching lower Snake River dams would have significant effects on local communities, the broader region and the environment. It would require a major investment of resources and time. Therefore, any decision to seek the requisite congressional authority must be driven by the “best available scientific information.

MORE KEITHINKING: A vocal minority of environmental groups will remain highly unsatisfied, rejecting this (and any other) form of adaptive management approach, but Judge Redden will probably be inclined to give the administration time (but not a whole lot of time) to prove itself.  By the way, in a separate but related and timely story, Discovery News reported today (citing  the latest Royal Society Biology Letters) that killer whale populations die without king (chinook) salmon.  

These issues are never, ever easy.  (BTW, check out this YouTube video of an orca stealing a fisherman's salmon!)

ESA in the News: Florida roundup


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The Florida Fish & Wildlife Commission is revisiting -- again -- the way it categorizes species for special protection.  The Orlando Sentinel reports that FWCC may use the same endangered and threatened designations that the U.S. Fish & Wildlife Service uses, or alternatively, a single threatened catch-all category.  The new approach could avoid more controversy over how manatees are protected in Florida, although recent news reports show that manatees continue to expand their habitat, with one recently swimming to New England.  See the Dennis Register and Reuters.  

Manatee in Cape Cod waters, photo from news.  

While manatees are trying to expand their habitat, Florida’s panthers are not so lucky.  There are only 100 panthers left, and the typical male needs 200 square miles of habitat, but the development patterns in the state (at least before the real estate crash) have cornered the big cats, leading to more interactions between panthers, humans and pets.  See Christian Science Monitor.  As a result, Collier County and local environmentalists are wrestling with ways to improve long term legal protections for panther habitat, potentially including a critical habitat designation.

Then again, if local officials do pursue critical habitat designation for the panther, they could soon be appearing in federal court.  After all, the subject of designation of critical habitat for the cape sable seaside sparrow has been in and out of court, too.  Last week, the Center for Biological Diversity went back into court, and filed suit against FWS to challenge its recent revision of CSSS habitat.  See Naples Daily News.  See also related discussion in ESA blawg.

ESA in the news: bad for Bush, but good for Obama? Don't touch eagle feathers, but shoot the wolves? EPA consults, but not FEMA?


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"The Obama administration is moving to accelerate Endangered Species Act," says the New York Times, and the administration will be embracing an ecosystem approach, allowing for decisions on multiple species all at once.  This sensible and science-based approach is expected to dramatically reduce the backlog in ESA listing and critical habitat decisions.  Ironically, as previously noted here on ESAblawg, that same approach was ridiculed when used by the Bush Administration for a critical habitat decision in Hawaii.   The Obama Administration is using other creative tools to implement the ESA, too.  For example, the California Rangeland Conservation Coalition, the U.S. Fish and Wildlife Service and the California Department of Fish and Game proposed a Programmatic Safe Harbor Agreement, covering the management of 20 different species in private rangelands in the northern Sacramento Valley and Tehama County.  See Contra Costa Times or Federal Register Notice.  

But creativity will not save the black footed ferrets in Colorado, because FWS says they have been extirpated, and as a result, landowners will no longer be required to conduct surveys for the species.  “The last black-footed ferret known to live in the wild in Colorado died more than 50 years ago,” says The Pueblo Chieftan.  Photo above of a black-footed ferret from Wind Cave National Park in South Dakota.  Bald eagles, however, are doing far better than the Colorado ferrets, says the New York Times, noting the recent FWS rules allowing incidental take of the species.   But even without an ESA listing, possession of eagle feathers remains a crime, reminds the Legal News Examiner, citing a recent Arizona prosecution.  Yet in the sometimes-upsidedown world of ESA implementation, possession of eagle feathers is a crime in Arizona, while shooting listed wolves is legal -- for the moment -- in the Rockies.  See New York Times story.   So which is it? List 'em or shoot 'em?  Wyoming residents say both!  Shooting endangered species can encourage support for conservation from hunting enthusiasts, and the Wyoming quotes numerous groups supporting the notion that FWS should list the sage grouse, while simultaneously allowing hunting.  

Of course, if the sage grouse does get listed in Wyoming, the real controversies will then begin when the consultation provisions of the ESA kick in, as they did in the Pacific Northwest, where battles over EPA's failure to consult on the impacts of pesticides led to numerous lawsuits.  Last week, after finally consulting with NOAA, the U.S. EPA has announced plans to place additional limitations on the use of three organophosphate pesticides — chlorpyrifos, diazinon and malathion — to protect endangered and threatened salmon and steelhead in California, Idaho, Oregon and Washington.  According to the EPA statement, "EPA is requesting the manufacturers to voluntarily adopt the new limitations on labeling for these pesticides. If the manufacturers decline this request, EPA will pursue regulatory action to impose the limitations."  But environmentalists are still litigating with FEMA, because it has not consulted with the FWS on the effects of FEMA flood insurance programs on development of sensitive Arizona habitat.  See Seattle Post

All these mixed messages make my head hurt.

ESA blawg proud to be an ABA Blawg-100 nominee


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A reader recently sent me a note to let me know how much he appreciates this law blog, and he also told me that he nominated ESA blawg as one of the American Bar Association's Top 100 niche blawgs.  Now, I'm not trying to launch a campaign here (and in fact, the ABA specifically discourages spam and form nominations.)  But hey, if you think ESA blawg worthy of recognition, and, more importantly, if you think that the Endangered Species Act deserves some additional national TLC, then please, let the editors at the ABA know, and send in a nomination.  Thanks!

NOAA announces final rule for smalltooth sawfish critical habitat in Southwest Florida, while Center for Biological Diversity announces lawsuit over Cape Sable Seaside Sparrow critical habitat


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74 Fed. Reg. 45353 / Vol. 74, No. 169 / Wednesday, September 2, 2009
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 226
Endangered and Threatened Species; Critical Habitat for the Endangered Distinct Population Segment of Smalltooth Sawfish
ACTION: Final rule.

SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a final rule to designate critical habitat for the U.S. distinct population segment (DPS) of smalltooth sawfish (Pristis pectinata), which was listed as endangered on April 1, 2003, under the Endangered Species Act (ESA). The critical habitat consists of two units: the Charlotte Harbor Estuary Unit, which comprises approximately 221,459 acres of coastal habitat; and the Ten Thousand Islands/ Everglades Unit (TTI/E), which comprises approximately 619,013 acres of coastal habitat. The two units are located along the southwestern coast of Florida between Charlotte Harbor and Florida Bay. DATES: This rule becomes effective October 2, 2009.

Smalltooth sawfish are tropical marine and estuarine elasmobranch (e.g., sharks, skates, and rays) fish that are reported to have a circumtropical distribution. The historic range of the smalltooth sawfish in the United States extends from Texas to New York (NMFS, 2009). Encounter data indicate smalltooth sawfish encounters can be found with some regularity only in south Florida from Charlotte Harbor to Florida Bay. A limited number of reported encounters (one in Georgia, one in Alabama, one in Louisiana, and one in Texas) have occurred outside of Florida since 1998.  Photo of a smalltooth sawfish at the Baltimore Aquarium from Sawfish Conservation Research.


In other news, the Center for Biological Diversity filed a lawsuit challenging the critical habitat rule for the Cape Sable Seaside Sparrow.  While CBD asserts the rule to be another example of Bush-administration abuse of the Endangered Species Act, FWS (and a prior ESA blawg entry) previously explained that this particular rule stemmed from the complexities of Everglades restoration activities.

ESA in the News All Over the Nation


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From New England to New Mexico, and the Pacific Northwest to Florida, with a dose of Texas an West Virginia too, the Endangered Species Act made news nationwide this week.  An excellent article in the New York Times on mountaintop mining reveals how environmental groups are well aware of the potential backlash of invoking the Endangered Species Act as a tool to protect the Appalachians.  While the Gray Lady quotes coal industry representatives to insist that they are heavily regulated, a recent article on coal coalition lobbying efforts suggests otherwise.  See Greenwire article as published by E&E.  Another gem from the NY Times came from its editorial pages, weighing in on the upcoming decision regarding the Federal Columbia River Power System and the impacts of dams on salmon.  The Buffalo News and Boston Globe both weighed in on salmon issues too.  In Texas, is debating the pros and cons of windpower vs. ecosystems, while the San Antonio Express News reports on a local ordinance to "require developers to acknowledge the Endangered Species Act," and its consequences, because growth in the region has caused the U.S. Army's Camp Bullis to become an “island” of habitat surrounded by development, and the camp already has to limit its activities on 10,000 acres in order to protect endangered species. Perhaps Kiplinger summed it up best, predicting that the Obama Administration will undo more than just a few dam Bush decisions.  But not everyone thinks that is a good thing, reminds, declaring the delta smelt issues in the Sacramento Delta to be a socio-economic disaster ("Obama's Katrina") and a case of do-gooders vs. good people (Sean Hannity spoke up too), while Central Valley's indybay disagrees and accuses Schwarzenegger of capitulating yet again (even calling the California Department of Fish and Game a de facto subsidiary of the Department of Water Resources).  Finally, the AP reports that the Mexican government plans to return a pack of captive-bred Mexican gray wolves to their historic range, "and news of the move has prompted a flurry of questions from wildlife managers, ranchers and conservationists in the United States."  Yup, tracking the Endangered Species Act is always interesting.

As for Florida: The St. Pete Times reports that the student science group SCUBAnauts, recently diving in the Florida Keys, confirmed that the farm-raised Staghorn coral they transplanted two years ago appears to be thriving.  Photo from St. Pete Times, courtesy of SCUBAnauts International Tampa Bay Chapter.  And panthers are certainly moving about, if a report of a Florida panther shooting in Georgia holds up.  See Opelika-Auburn News.  Sea turtles, however, are still not faring all that well, and the St. Pete Times reported that NOAA has cut the grouper fishery fleet in half to protect sea turtles.  And finally, Wade Hopping, who fought to get manatees removed from the endangered species list, died this week.  The Miami Herald noted that "Without exception, his foes mourned his passing Tuesday."

ESA in the News: wind farms, climate change, and salmon vs. hydropower


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Wind farms and the Endangered Species Act continue on their collision course.  Horizon Wind Energy has suspended development of the Simpson Ridge wind farm in Carbon County because of Wyoming's rigid position on protecting key sage grouse habitat.  See  According to the Heartland Institute, the Animal Welfare Institute and Mountain Communities for Responsible Energy filed a federal lawsuit to require operators of a proposed West Virginia wind farm to obtain a “takings” permit under the Endangered Species Act before the Beech Ridge Energy wind farm in Greenbrier County can begin operations.  At issue is potential take of endangered Indiana bats, and as many as 113 caves exist between five and 10 miles from the site that serve as Indiana bat habitat.   “Sacrificing anything, especially endangered species, to enable one of the dumbest modern energy ideas imaginable is anathema,” said one environmentalist quoted by The Heartland Institute (and showing remarkable deafness to the clarion call of global climate change.)  

Speaking of climate change, NPR recently reported that the American pika could become the first animal in the continental U.S. listed under the Endangered Species Act because of climate change.  See prior ESA blawg discussing Federal Register announcement.  ESA blawg also anticipated that the debate over newly confirmed Justice Sotomayor  would include the Endangered Species Act, and indeed, cautious U.S. Senators voiced concerns about how a future Justice Sotomayor might vote on this issues.  As reported by the New York Times, Sen. Dianne Feinstein (D-Calif.) asked about Judge Sotomayor’s views of the Commerce Clause, noting that "One of the main concerns is that he court'sinterpretation, which is much more restrictive now, could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act or anything that we might even do in cap and trade."  Judge Sotomayor punted the question, of course.  "There are cases pending before the courts raising those arguments."


In another clash of species vs. "greener" energy, NOAA and the FWS will soon be responding one of Judge Redden's deadlines in the ongoing litigation over the Federal Columbia River Power System.  See prior ESA blawg.  On the opinion pages of, Charles Wilkinson, a well-known environmental law professor, notes that the upcoming federal decision on how to manage the Snake River dam system and its effects on salmonid species poses an important test for the Obama Administration.  His proposed solution is to tear down the dams, because "...times have changed in the Northwest. Large dams that no longer make sense are being removed on the Elwha, White Salmon and Klamath Rivers. The lower Snake dams deserve the same because they impose such high public costs and collide so directly with the ESA. They produce only a few percentage points of the Columbia-Snake system's hydropower, and there is ample analysis that it can be affordably replaced from noncarbon sources. And salmon mean jobs and business."  Such a decision might satisfy the folks from Save Our Wild Salmon who held protests in D.C. (and who blogged about it with the photo above), but whatever decision the Administration makes on the Snake River and salmon, more litigation is a guarantee.

And, sadly, just like the salmon litigation, the Endangered Species Act law enforcement efforts never end either.  A federal grand jury indicted a 78-year-old Kauai man in the shooting death of an endangered Hawaiian monk seal in May.  See AP.  An Oregon local TV news station KGW reports that two men accused of shooting one of Washington's few grizzly bears are expected to appear in federal court next week, facing felony violations of the Endangered Species Act.    CapeLinks reported on an ongoing enforcement case over humpback whale harassment.  And an FWS investigation is underway near Naples, Florida, where a landowner has been accused of large scale logging and improving of pasture at the HHH Ranch.  The land serves as habitat for endangered species, including the Florida panther.  According to, representatives of the ranch owners said the Fish and Wildlife Service agreed that the work would not violate the Endangered Species Act as long as crews protected red-cockaded woodpeckers and wood storks and improved habitat for the Florida panther.

Finally, the Florida news round-up.  NOAA is expected to make a decision soon on whether longline fishing for shallow water grouper can continue without threatening loggerhead sea turtles. See Sarasota Herald Tribune.  The Atlanta Journal Constitution, reporting on the ongoing Florida vs. Georgia struggle over Lake Lanier water, quotes U.S. Rep. John Linder (R-GA) to say that "the Endangered Species Act has become a blunt weapon," and that amending the statute "has to be brought to the table."  The U.S. Navy's plans for expanding sonar testing off-shore from their Jacksonville, Florida bases has local environmentalists concerned about impacts on right whales.  See The Post and Courier.  And in a “how weird is that” moment, reported on a dolphin frolicking in the water near Marco, Island, Florida, that leaped into a 22-foot boat.  

Center for Progressive Reform comments on improving ESA Section 7 consultation may seek too much of a good thing.


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Responding to the Obama Administration's requests for comments on potential improvements to the Endangered Species Act Section 7 consultation process, the Center for Progressive Reform offered its insights earlier today.  See link.  Among its recommendations were to:
  1. Broaden the scope of agency actions subject to Section 7 consultations to include all agency actions
  2. Amend the regulatory definitions of “cumulative effects” and “indirect effects” to more closely align with the guidelines for implementing the National Environmental Policy Act (NEPA);
  3. Amend the regulatory definitions of “destruction or adverse modification of critical habitat” and “jeopardize the continued existence of” so that they better enable FWS and NMFS to provide for the recovery of listed species, and so that they are better grounded in biological science;
  4. Stop considering any new regulatory proposals that would provide federal agencies with the authority to determine on their own whether a Section 7 consultation is required for a proposed action;
  5. Ensure that the Environmental Protection Agency fully comply with the Section 7 consultation process when regulating pesticides under the Federal Insecticide, Fungicide and Rodenticide Act and when developing water quality criteria for the protection of aquatic life under the Clean Water Act;
  6. Improving the manner in which they track and monitor federal agencies' efforts to comply with recommendations made during the Section 7 consultation process and the actual outcomes that are achieved by agency efforts to comply with these recommendations; and
  7. Explore ways to use the often ignored provisions of section 7(a)(1) of the ESA—which requires that all federal agencies implement programs for the conservation of endangered species—to address the threats posed to endangered by global climate change.

    KEITHINKING: CPR's comments, such as the proposed amendments to regulatory definitions, FIFRA consultations, and improved tracking of biological opinion implementation, reflect a number of reasonable (but of course, debatable) policy reforms.  However, in one important respect, the well-intentioned comments exemplify a frequent problem with many outsider-looking-in comments on ESA implementation.  Although at times absolutely necessary to protect species on the brink of extinction, the ESA consultation process also brings with it significant burdens.  Development of a "biological opinion" is an excruciatingly detailed endeavor, often leading to 100-plus page documents, relying in turn upon thousands of pages of scientific literature.  The many layers of statutory and regulatory requirements, all endlessly litigated, create a process where nearly any biological opinion is likely to have at least one mistake or omission (or even just one less-than-perfectly explained paragraph) thus enabling the creative opponent to obtain an injunction of the underlying project.  As a result, to insist that consultation should be conducted on "all agency actions," or to suggest that the process should be expanded using the provisions of ESA Sec. 7(a)(1), is to ignore both the consequences of those demands, and the long history of ESA litigation.  In some cases, especially when federal actions benefit the status of a species or its habitat, or where federal actions have de minimus impacts, the imposition of the ESA's procedural burdens may inadvertently create new opportunities for mischief (and don't forget, a burden on the taxpayers.)  

    ESA amendments may be needed, regulatory reform of the ESA may be needed, and yes, the Bush Administration over-reached.  

    But progressive reform of the ESA should seek to improve the ESA consultation process when helpful, and to ease the burdens when it is not.  

    Too much consultation is not a good thing.

ESA in the News: FWS shuffles, and other smelt, salmon, and sawfish stories


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The U.S. Fish and Wildlife Service is making minor but familiar changes to its endangered species management personnel, reports the New York Times.  Gary Frazer is back, overseeing the endangered species program for the U.S. Fish and Wildlife Service, just as he did under the Clinton administration, and Bryan Arroyo, currently assistant director of endangered species, will become assistant director for fisheries and habitat conservation.  But the return of the Clintonites hasn't satisfied some environmental fundraisers, the American Spectator sarcastically (and don't forget, sore-loserly) points out in a recent article titled we've won, please help.

But Congress is showing the money to endangered species, allocating funds for sea otters and turtles, and San Juan residents are helping the whales, though, protesting the effects of whale watching on orcas.  See EarthTimes.  In fact, due to new NOAA rules to protect killer whales, the U.S. Navy can't use sonar in Puget Sound noted the Kitsap Sun, but recent got permission to increase use in Florida waters.  See  

The noise continues to reach painful volumes in the struggle over protection of the delta smelt in the Sacramento Delta, however.  USA Today reports that farmers are blaming the Feds for worsening the drought, local boaters are planning an in-water protest, and Rep. George Radanovich (R-Fresno), personally signed the Pacific Legal Foundation's petition seeking to invoke the Endangered Species Act "God Squad" to create an exception to the ESA.  “Without relief from the God Squad, the harsh enforcement of rigid environmental rules will inflict more pain and suffering," says PLF.  But harsh enforcement is exactly what happened in Vermont, where one man is going to jail for possession of a lynx carcass.  Eventually, someone else in New Jersey may land time for some pilfered piping plover eggs.   But the Heritage Foundation says that the ESA enforcement is an example of over-criminalization, especially in the context of orchids.

After reading that it was not criminal to send trout off a 460 foot cliff, see Oregon Statemen Journal, I wondered if the Heritage Foundation might have a point.  But for the moment (with the exception of the tearing down of Oregon's Gold Ray Dam), it is almost as though hydropower operators are being praised as heroes.  Idaho biologists expect good sockeye salmon numbers, says the Idaho Mountain Express, and the LA Times report that hydropower is getting even greener when it comes to salmon management.  

And finally (in a few items of personal interest), a University of Florida shark expert (go Gators) is helping with the efforts to protect sawfish too, and Plum Island, an 840 acre island home to a federal animal disease research center near Long Island's North Fork (check out the vineyards) is for sale.

ESA in the News: return of the spotted owl, and the spotted turtle (and the wolf, smelt, stork, and manatee)


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Earlier today, U.S. Department of the Interior Secretary Ken Salazar announced that the Western Oregon Plan Revisions were withdrawn because "the administrative record does not adequately document compliance with the Endangered Species Act and implementing regulations."  In addition, he will ask the District Court to vacate the 2008 Northern Spotted Owl Critical Habitat Rule, and direct the Fish and Wildlife Service do a review of the Northern Spotted Owl Recovery Plan.  The decision reflect a complete reversal of course of the Bush Administration's last-minute decision not complete consultation under Section 7 of the Endangered Species Act before finalizing a plan for the management of forests in western Oregon.  See DOI press release and National Public Radio report.  Earthjustice, as well as the Forest Service Employees for Environmental Ethics and a blog in Eugene, Oregon hooted victory.

But in Michigan, news sources are howling about the (re)listing (yet again) of the wolf. Both the Detroit News and emphasized the return of substantial wolf counts in Michigan, Minnesota and Wisconsin -- over 4,000 wolves are estimated in the three states -- but the Center for Biological Diversity argues that good intentions are not enough, especially in light of inadequate funding for regional wolf research. Meanwhile, in Montana, state officials are planning a wolf hunt. for its population of 1,350.  

In Washington, D.C., the efforts to exempt the Sacramento Delta, and the delta smelt, from the Endangered Species Act continue to fail, but are garnering Congressional attention.  See, e.g. California Drought Alleviation Act of 2009.  Last week, the U.S. House of Representatives voted "no" on Congressman Nunes' s (R-CA) amendment to the Commerce, Justice, Science, and Related Agencies Appropriations Act of 2010.  The amendment attempted to override the biological opinion on salmon, by cutting off all funding.  See Delta Flows.  

In Florida, endangered wood storks are breeding like crazy, but a signature state tradition of animal interaction has been called into question.  Swimming with Florida's manatees could soon come to an end.  Citing the anti-harassment requirements in the Florida Manatee Sanctuary Act, the Marine Mammal Protection Act and the Endangered Species Act, Public Employees for Environmental Responsibility has published a petition threatening suit if the U.S. Fish and Wildlife Service does not enforce the rules more stringently.  See

And finally, in Maine, state officials are taking action to end the deaths of endangered spotted turtles protected by the Endangered Species Act.  See The Village Soup and, photo from Maine Department of Inland Fisheries and Wildlife.

Endangered shiner gets government help


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Endangered Shiner Gets Government Help, by Pete David.

Federal and state agencies in New Mexico are collaborating on an effort that will hopefully help support recovery of the Pecos bluntnose shiner (Notropis simus pecosensis) in the Pecos River located in the eastern part of the state. The U.S. Fish and Wildlife Service (FWS) listed the fish as threatened in 1987 and submitted a subsequent determination in 1989 that water operations in the river were likely to jeopardize the future existence of the fish. The primary operations to be affected were water deliveries by the Bureau of Reclamation (BOR) to the Carlsbad Irrigation District (CID) and water releases by the New Mexico Interstate Stream Commission (NMISC) to meet their interstate compact requirements to Texas.

The Pecos bluntnose shiner, pictured above (from Bureau of Reclamation) is a subspecies of the Rio Grande bluntnose shiner (Notropis simus simus), one of a number of fish from the family Cyprinidae whose populations crashed during the 1950’s and 1960’s likely as a result of irrigation withdrawals and mainstream dams. Four Cyprinid species were extirpated from New Mexico and one, the Rio Grande silvery minnow (Hybognathus amarus) is a federally endangered species due to much reduced abundance and distribution. By the 1980’s the extensive historic range of the bluntnose shiner had been reduced to several short segments within an undammed 333 km of the Pecos River south of Lake Sumner where at least some inconsistent perennial flow occurs due to local groundwater seepage. Population surveys conducted in 2007 by NMISC and SWCA Environmental Consultants estimated the population at 65,605 + 16,873.

Studies initiated in 1992 by the FWS and the New Mexico Department of Game and Fish provided a critical understanding of the shiner’s life history requirements and led to a series of recommendations and additional studies that were implemented by the NMISC. These long-term studies were the basis for the analysis in a 2006 Environmental Impact Statement that mandated water operation modifications to maintain continuous flow to the river and protect the shiner while providing the water supply for CID.

A series of management measures were implemented to meet the federally mandated requirements including:
  • Leasing by BOR of nearly $400,000 worth of water rights from regional farmers
  • Leasing of water by NMISC using the state’s Strategic Water Reserve Program
  • Creating a water banking exchange program to store and release water at critical times
  • Establishing a fish conservation pool in upstream reservoirs to be used exclusively for the shiner

In addition, NMISC completed the Vaughn Conservation Pipeline funded by the Strategic Water Reserve Program to acquire water from networked wells and provide supplemental flow to the river. The project received a Cooperative Conservation Award from BOR in 2008. The planning and implementation of these creative measures resulted in the revised determination by the FWS that the water operations in the Pecos River were no longer jeopardizing the existence of the shiner. Due to multi-agency cooperation, support and creative flexibility there is hope that the shiner’s habitat requirements are being addressed. Annual population studies will continue to be conducted to assess the success of these water management modifications.

Climate change creates new challenges for application of ESA's listing factors to individual species


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Based on the recent federal report, Global Climate Change Impacts in the United States, the nation's ecosystems will soon experience massive stresses.   According to this report (see Executive Summary too), our national ecosystems have already changed, and will endure massive changes:
  • Ecosystem processes, such as those that control growth and decomposition, have already been affected by climate change;
  • Large-scale shifts have occurred in the ranges of species and the timing of the seasons and animal migration, and are very likely to continue;
  • Fires, insect pests, disease pathogens, and invasive weed species have increased, and these trends are likely to continue;
  • Deserts and drylands are likely to become hotter and drier, feeding a selfreinforcing cycle of invasive plants, fire, and erosion;
  • Coastal and near-shore ecosystems, including coral reefs, are already under multiple stresses. Climate change and ocean acidification will exacerbate these stresses;
  • Arctic sea ice ecosystems are already being adversely affected by the loss of summer sea ice and further changes are expected;
  • The habitats of some mountain species and coldwater fish, such as salmon and trout, are very likely to contract in response to warming.

When these large scale ecosystem concepts are applied to individual species, ESA implementation could become far more difficult than it already is.  As frequently explained in Federal Register notices, Section 4 of the Endangered Species Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. "A species or subspecies may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act..."
    (A) The present or threatened destruction, modification, or curtailment of its habitat or range;
    (B) overutilization for commercial, recreational, scientific, or educational purposes;
    (C) disease or predation;
    (D) the inadequacy of existing regulatory mechanisms; or
    (E) other natural or manmade factors affecting its continued existence."

In other words, when the ecosystem impacts, as discussed in the recent climate change report, is applied to the listing analysis, Factor A (habitat changes), C (disease), and E (other factors) can be expected to play a prominent role in virtually all future ESA listing evaluations.  It will prove technically (and legally) challenging to assess the degree to which species are, or are not, threatened or endangered by climate change.  

Nevertheless, the Intergovernmental Panel on Climate Change has estimated that if a warming of 3.5 to 5.5°F occurs, 20 to 30 percent of species that have been studied would be in climate zones that are far outside of their current ranges, and would therefore likely be at risk of extinction.  Indeed, extinction rates of plants and animals have already risen considerably, with the vast majority of these extinctions attributed to loss of habitat or over-exploitation.  There may, however, be a thin silver lining.  As the climate change report also notes, "some of the benefits ecosystems provide to society will be threatened by climate change, while others will be enhanced."

SEE ALSO: New York Times.


Bat-related biological breakthrough reminds us why we need the ESA


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This week, in The FESEBJ Journal (published by the The Federation of American Societies for Experimental Biology), an article discusses a potentially age-defying discovery.  According to a team of Texas researchers, two long-lived bat species (one from Florida, of course) suffered less aging and cell damage when exposed to chemicals and acute oxidative stress.  The scientists concluded that the bat's very efficient maintenance of protein homeostasis explained the results.  See Abstract.  An article discussing the discovery called it a Fountain of Youth.  See  Science Daily.

But across North America, bats are suffering significantly from disease and habitat degradation.  White Nose Syndrome is destroying hundreds of thousands of bats, and significant explosions in insect populations could result.  See The Intelligencer, and CBS newstech.  NPR recently reported on the potential spread of WNS to cave-dwelling bats across the country.  Furthermore, of the 45 species of bats found in the continental United States, six are already federally-listed as endangered under the Endangered Species Act.  These species include the: gray bat (Myotis grisescens), Indiana bat (Myotis sodalis), Ozark big-eared bat (Corynorhinus (=Plecotus) townsendii ngens), Virginia big-eared bat (Corynorhinus (=Plecotus) townsendii virginianus), lesser long-nosed (Leptonycteris curasoae yerbabuenae), and Mexican long-nosed bat (Leptonycteris nivalis).

Whatever the flaws in the ESA (as often exposed through litigation discussed here at ESA blawg), the underlying premise of the statute remains unassailable.  Conservation of species is a human necessity.  And conservation can work, including for bat species, as proven by recent successes with the Pemba flying fox on the tropical island of Pemba, off Tanzania.  See Science Daily.  Still, we will face many challenges here in the United States with threats ranging from wind mill farms to development and habitat destruction.  See Defenders of Wildlife.  To remind us to take every effort at protecting species from extinction at the hands of those projects, we need the ESA.

Photo of the Mexican Free-Tailed Bat  (Tadarida brasiliensis), one of the species that was the subject of the newly published research on aging, from Florida's DeFuniak Springs Garden Club.

More litigation, more politics, and more media attention, but less water and no solutions in the Sacramento Delta


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Add EPA to the list of federal agencies tangled up in the Sacramento Delta disputes.  The Environmental Protection Agency is settling litigation accusing the agency of failing to comply with the Endangered Species Act , says the San Francisco Chronicle at SFgate.  The Center for Biological Diversity (CBD) press release explains that they sued EPA for failing to consult on the effects of EPA-approved pesticides on 11 different species in the Bay Area.  Among the species in question is -- of course -- the Delta smelt.  So now, in addition to the biological opinions from the U.S. Fish and Wildlife Service and National Marine Fisheries Service on smelt and salmonids and other species, soon we will add a biological opinion related to pesticide use in the region.  

With the never-ending stream of delta-smelt related ESA news coming from Northern California, it is not surprising that some frustrated farming interests are trying to invoke the ESA's Endangered Species Committee, also known as the God Squad.  See The Packer.  The Pacific Legal Foundation has filed a petition and begun a political campaign to force the use of the God Squad to create an exception from the ESA and relieve all the difficulties of managing the limited water resources for the benefit of protected species.  See PLF press release and petition.  California Governor Arnold Schwarzenegger said the “God Squad” has been ineffective in past cases, see The Business Journal, and Interior Secretary Ken Salazar said “That would be admitting failure. I am not about failure.”

The refusal to fail is admirable, but still, the enormous complexity of these challenges remain.  Farmers are protesting.  See The Mercury News.  Some editorialists will blame the environmentalists, while environmentally-oriented thinkers blame self-interested locals and failure of the regional farming economy to adapt, further bashing regional agriculture as full of myths and lies.  Ag is doing just fine, they say, especially when compared to the rest of the economy.  See SF Gate.  Nevertheless, water has become the Governator's biggest concern, and this story will only get bigger.  Coverage of this issue has already been national news, reaching the New York Times, USA Today.  

Maybe some idealistic ESA litigators believe otherwise, but a solution is unlikely to come from the judiciary.  Indeed, the orders issued by U.S. District Court Judge Oliver Wanger receive intense criticism for even attempting to provide a degree of flexibility to the state and federal agencies to make decisions on a week-by-week basis.  See IndyBay.  Eventually -- God Squad or not -- our political leaders will be forced to wrestle with very difficult choices.  The potential solution of a regional canal to reduce impacts on the Sacramento Delta remains just an idea.  See Public Policy Institute of California's 2008 paper and IndyBay.  But with so many different species in the region, inter-species competition over the quantity, quality and timing of water deliveries are inevitable.  Human needs will continue to compete with nature, further reducing the amount of water available for fish and wildlife.  Even agricultural interests are worried that Secretary Salazar will not be able to find a workable solution.  See Capital Press.  

So what comes next?  God squad?  Protests?  Peripheral canal?  More litigation?  The California Water Czar?  Pick any one, but remember, "there is always a well-known solution to every human problem -- neat, plausible, and wrong." -- H.L. Menken, "The Divine Afflatus," New York Evening Mail (Nov. 16, 1917).

Delta Smelt photo from U.S. FWS by Peter Johnsen.

ESA in the news


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It's been kinda quiet lately in the Federal Register, with few Endangered Species Act announcements.  But President Obama's nominee as Director of U.S. Fish and Wildlife Service caused a stir with Public Employees for Environmental Responsibility (PEER), whose press release berated Sam Hamilton for "almost never" invoking the ESA to protect wildlife, according to their analysis of agency statistics.  PEER believes he had "by far the weakest record on Endangered Species Act enforcement of any comparable official in the country."  Meanwhile, his boss, another publicly criticized environmental leader, Interior Secretary Ken Salazar, is preparing for a trip to Fresno, where he expects to encounter local farmers frustrated that the consequences of ESA enforcement have become too severe.  See The Business Journal and  (But putting things into perspective, the declares that Sarah Palin is "worse than Bush" on environmental issues.)

Of course, like politics itself, nearly all environmentaI issues are local (global climate change a partial exception).  Nevertheless, to the layperson, ESA implementation seems rife with mixed messages:  

ESA news: from Florida to California, and from courtrooms to climate change


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The Endangered Species Act repeatedly made Florida news this week.  The Orlando Sentinel reports that despite concerns for listed sea turtle concerns (nevermind local budget shortfalls), coastal governments are considering lifting tolls on beach driving.  And while automobiles are always a threat to the critically-endangered Florida panther, this week, news reports have focused on a reward offered related to a shooting death of the big Florida cat.  See Tampa Bay Online.  Elsewhere in central Florida, reported that a new species of beetle was discovered by a retired biology professor in Polk County, and already the news is discussing a potential endangered listing for this species as an "an accident of biogeography."  

Meanwhile, in the midwest, another beetle, already listed under the ESA, is still trying to find a home.  The Ironton Tribune reported on the release of 300 pairs of the American burying beetle into The Wayne National Forest.  Previously, in 2008, 250 pairs of beetles were introduced after rearing them at Ohio State University, The Wilds, and the St. Louis Zoo.  Another good news story came from New Mexico, where the AP reported that local biologists helped threatened gila trout populations relocate to avoid area wildfires.


Courtrooms across the nation offered ESA news as well.  In a settlement with Defenders of Wildlife and Center for Biological Diversity, U.S. Fish and Wildlife Service agreed to reconsider denial of Endangered Species Act protection for the wolverine by 2010, says the Seattle Post Intelligencer.  Wolverine photo above from The Klamath-Siskiyou Wildlands Center.  Climate change will be a major consideration for the wolverine, but concerns for climate change did not stop a separate group of environmentalists from  "asking a federal judge to require the developer of a West Virginia wind farm to comply with the Endangered Species Act because of the potential harm to the endangered Indiana bat," says the Chicago Tribune and Charleston Gazette.   Similar problems with wind power are arising in Oregon, reports the Capital Press, due to concerns over listed sage grouse populations.

Finally, California, as always, remained a hotbed of ESA activity.  The Center for Biological Diversity remains opposed to the Habitat Conservation Plan being developed for Tejon Ranch (see prior ESA blawg) and filed a related FOIA request.  In the Sacramento Delta, the California Farm Bureau is loudly protesting the impacts of the most recent biological opinion seeking to protect salmonids and smelt, but that did not prevent the filing of yet another Notice of Intent to sue the Federal Government for failing to deliver adequate water to fish, and especially salmonids. See

Sam Hamilton nominated as Director of the U.S. Fish and Wildlife Service


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In a press release yesterday, Secretary Ken Salazar praised President Obama’s intent to nominate Sam Hamilton as Director of U.S. Fish and Wildlife Service.  Mr. Hamilton's bio, based on his current position as Southeast Regional Director of the Department of Interior, is available online here, and the press release for his appointment to that position in 1997 is also available online.  Earlier in his career, he led the Austin Texas office of the FWS.  See Salsa Verde.  

In an interesting interview by Hoot, Mr. Hamilton said his two greatest career accomplishments were working on the rediscovery of the ivory-billed woodpecker and the Everglades restoration.  He also noted that "it is frustrating to see so much wildlife habitat in this country being converted to other uses at a pace unlike anything in our history."  Also of note is his testimony to Congress in 2007, when Mr. Hamilton addressed climate change issues, including the IPCC warnings, the loss of sea ice, the potential extinction of species, the consequences for stewardship of the National Refuge System, and the implications of a warming Gulf of Mexico.

The blogosphere has been rather quiet about the nomination, but the U.S. Sportsmen Association voiced support.

Photo fromU.S. Department of Interior.

ESA in the news: turtles, smelt, lynx, wolves, salmonids and... walrus?


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It was once a George Carlin Joke: what do you do if you see an endangered animal eating an endangered plant?  But the Center for Biological Diversity doesn't share the laugh, and has filed a petition to list the western gull-billed tern, with one of its two U.S. breeding sites at San Diego Bay National Wildlife Refuge, because the species is "threatened by a Fish and Wildlife Service plan to reduce its population by destroying eggs. "  As the CBD press release explains: "The control effort is intended to protect two other endangered seabirds: the western snowy plover and the California least tern."  

FWS won't be alone as it grapples with the unanswerable questions, because federal judges are presiding over new incarnations of lawsuits that have evaded resolution for decades.  An AP story appearing in the notes that Oceana, the Center for Biological Diversity and the Sea Turtle Restoration Project filed a complaint in San Francisco asking that populations of loggerheads in the Pacific and Atlantic Oceans be upgraded from threatened to endangered.  Upstream, water users and property rights advocates in the Sacramento Delta -- probably tired of intervening in environmentalist-initiated litigation -- have filed lawsuits of their own.  A recent PRnewswire report mentioned a water users lawsuit arguing that decisions to manage water for the delta smelt failed to comply with the best available science, and the Fresno Bee discussed the Pacific Legal Foundation's claim that the protection of an endangered delta smelt is an unconstitutional violation of the commerce clause.  The lynx is back in court too, with conservationists seeking to expand the species critical habitat, but this time, according to the New York Times, "the suit is thought to be the first legal challenge of a habitat designation brought on the grounds of climate change." See also, the Summit Daily News.  The LA Times reports on the endless gray wolf litigation related to the listing, delisting, and relisting of the species.  

Perhaps most notably, in response to Judge Redden's recent letter to the Obama Administration (see prior ESA blawg) discussing the Federal Columbia River Power System litigation, notes that "Idaho’s two U.S. senators are both calling for a regional dialogue in an effort to forestall a judicial takeover of the river system," while Seattle's thinks about a future involving tearing down dams.

While sea turtles, wolves, lynx, and salmon may be familiar subjects of ESA litigation, CBD may soon add the walrus (photo above from to the list of species debated in the courts.  Based on a recent court-approved settlement, the Fish and Wildlife Service must make an initial finding on the Center’s petition requesting protection of the walrus by September 10, 2009, with a subsequent decision as to whether the species should be protected the following year.  And CBD continues to break new ground with its ESA-based protest of a water-right application that would be used to facilitate the development of a nuclear power plant at Green River, Utah.  But what the new administration will do is anybody's guess.  David Suzuki, writing for, thinks that the Obama Administration's "support for the Endangered Species Act signals a 180-degree turn for the U.S. government.  Then again, gave "one and a half" cheers to the President and Secretary Salazar for agreeing with the Bush Administration on the polar bear 4(d) rules, but rejecting the previously-adopted regulations amending the ESA consultation process.

For a few other noteworthy ESA-related stories, visit:
  • Boston Herald reports about the U.S. Department of Justice case against a Massachusetts man who allegedly engaged in illegal importation and illegal trafficking of sperm whale teeth; and
  • The Orlando Business Journal story on The Florida Homebuilders Association's petition to downgrade the status of the endangered wood stork — prevalent in Central and South Florida — to “threatened.”

Speculation on Species and Ms. Sotomayor


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A potential Supreme Court Justice has been nominated, so let the wild speculation begin.  How might Sonia Sotomayor change the highest court?  Will she declare the Endangered Species Act unconstitutional?  Indeed, for all the talk about “legal philosophy,” David Brooks and Gail Collins opine that the whole debate really is about policy, including whether a new justice will let the federal government keep protecting endangered species.  See New York Times blog.  No one really knows, but still the ink flows.  

Grist says Ms. Sotomayor has a small but solid record on environmental rulings, further quoting EarthJustice President Tripp Van Noppen to say that “This is the best Supreme Court nomination in many years.”   Skinny Moose says there’s not a lot of information out there, but based on the few morsels that do exist, Legal Planet thinks that “environmental issues are unlikely to loom large in the confirmation battle” because in a Second Circuit environmental case, Ms. Sotomayor said EPA could consider whether benefits were grossly disproportional to costs (a ruling deemed an environmentalist defeat.)

KEITHINKING: I’ll join the speculators, because, as even Ms. Sotomayor recognized, in her much criticized legal education presentation, courts are engaged in the "percolation" of policy.  IMO, Ms. Sotomayor would be unlikely to find the ESA unconstitutional.  In U.S. v. Giordano, Ms. Sotomayor rejected a commerce clause based effort to limit Congress’s regulatory power, holding (in a criminal case) that a national telephone network was an instrumentality of interstate commerce, even though a particular fact-pattern occurred only in an intrastate context.  So even if Pacific Legal Foundation reaches the Supreme Court with their constitutional challenge of the ESA and argument that the delta smelt is a purely intrastate species, Ms. Sotomayor is probably a vote against them.  (Nod to Sive, Paget and Reisel LLC)

Photo of President Obama, Ms. Sotomayor, and Vice Pres. Biden by Pete Souza (5/26/09) available from The White House.

Judge Redden outlines tentative position on 2008 biop in dispute over Columbia and Snake River dam operations, and impacts on salmonid species


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It's not a court opinion - yet - but Judge Redden made his position clear in a May 18, 2009 letter to the parties in National Wildlife Federation v. NMFS, CV 01-640 RE, the long-running litigation over the Federal Columbia River Power System and salmonid species.  While the 2008 biological opinion relied on a conclusion that the new biological opinion contained substantial improvements, and that species were trending toward recovery, Judge Redden disagreed: "Even if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation, the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious."  In fact, the Judge went on to explain that (1) the Feds improperly rely on speculative, uncertain, and unidentified "habitat improvement actions," (2) Fed scientists have concluded that many of the measures are unsupported by scientific literature; (3) the Feds         assign implausible and arbitrary numerical survival improvements to the tributary habitat actions, (4) the BiOp does not identify any performance standards; (5) the BiOp does not, articulate a rational contingency plan; and (6) the Feds insufficiently explained their proposed operations.  See news coverage in LA Times blog, The Idaho Statesman, and The Seattle Times.  According to the Public News Service, local environmental groups were pleased.  But for a counterpoint to the optimism,  visit the editorial commentary in The Wenatchee World, criticizing the never ending salmon litigation, and stating that "The biggest salmon runs in 70 years came in this decade. Billions were spent to improve fish passage at dams, reaching the point where salmon survival equals or surpasses undammed rivers. For every dollar spent on electricity, 20 percent goes to salmon. Most salmon runs are gaining strength. They are not at the brink."

The fish ladder and Visitor Center at Bonneville Dam, photo from University of Washington

KEITHINKING: The opinion represents a setback for federal biologists, but solutions will never be easy to come in this struggle between carbon-friendly hydroelectric power and threatened and endangered salmonid species.  The letter also represents an unusual acknowledgement of politics, and the realities of a change in presidential administrations.  In a letter last week to Judge Redden, the Justice Department said top officials in the Obama administration want a delay of up to two months to "more fully understand all aspects" of the plan. See Capital Press.  Judge Redden's letter represents a prodding response.  "I applaud the new administration's efforts to understand, and become more fully engaged in the complex issues presented by this case."  In other words, rather than issuing an opinion, Judge Redden gave the Obama Administration an opportunity to take another look at the circumstances, and to reconsider the current course.

Interior says no change in polar bear rule; new legislation, not the ESA, should regulate climate change


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Earlier today, the U.S. Department of Interior announced that it would retain the Section 4(d) conservation rule for polar bears previously adopted in the waning days of the Bush Administration, see ESA blawg (Dec. 2008).  But in a press release, DOI emphasized the need for comprehensive energy and climate change legislation.  “To see the polar bear’s habitat melting and an iconic species threatened is an environmental tragedy of the modern age,” Secretary Ken Salazar said. “This administration is fully committed to the protection and recovery of the polar bear. I have reviewed the current rule, received the recommendations of the Fish and Wildlife Service, and concluded that the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species.”

The decision sounded, in some respects, like an oil industry soundbite, based on a quote of American Petroleum Institute President Jack Gerard in the Wall Street Journal.  "The Endangered Species Act is not the proper mechanism for controlling our nation's carbon emissions," he said.  Predictably, many environmental voices screamed, including Greenpeace Campaigner Ryan Patterson who told theWall Street Journal "This decision was a litmus test for the Obama administration's commitment to science-based development of global-warming policy.  They failed miserably," The Center for Biological Diversity took an equally strident position.  "Thank God for the courts," they told the The New York Times.  But other environmentalists took a more moderate position, including John Kostyack, of National Wildlife Federation, who conceded to The Washington Post that it would have been difficult to tackle a massive problem like greenhouse gases through the endangered species bureaucracy.  Still, litigation, as usual, was inevitable, as noted on the pages of this ESA blawg, and this one too.  

Photo from biolaw a blog on law and the life sciences.  

KEITHINKING: As I've written for over a year on the pages of this ESA blawg, the polar bear debate has served as a policy proxy for the lack of a national climate change policy.  In this respect, today's decision seems somewhat reasonable.  Put simply, given the current state of the science, it would prove impossible for FWS to use the ESA in the manner anticipated by groups like CBD.  The analysis is too attenuated.  For example, in a biological opinion on the polar bear, FWS would first need to determine the degree to which a proposed federal action on a power plant in the Southeast might affect climate change, and then calculate much the climate change might affect a polar bear, ultimately reaching a decision as to whether the power plant would, or would not, jeopardize the continued existence of the polar bear.  In some respects, this is like law school, and torts 101.  Defendants car struck Plaintiff, who sustains non-fatal injuries.  On route to the hospital, Plaintiff dies in the ambulance when an earthquake causes a poorly constructed building to crush the vehicle.  Is Defendant responsible for the wrongful death?  Yes, there is a degree of "but for" causation, and yes, even a link in the chain of causation...  but common sense says that the car crash didn't kill the Plaintiff, and the southeastern power plant didn't kill the polar bear.  

In my opinion, more action on polar bears, climate change, and greenhouse gas emissions is absolutely necessary and appropriate, and Congress should act.  Any other alternative is ugly.  If Congress does not act, or if CBD prevails and the current structure of the ESA becomes our only national tool for administering climate change policy, then the result will be that FWS (and NOAA) must declare jeopardy for every action that increases greenhouse gases, based on the potential affects to polar bears (and perhaps any other species struggling with the effects of climate change.)  So, while the thinkers at biolaw declared today The day the ESA died, I think that the opposite decision -- using the ESA as a climate change tool -- could also have marked the death of the ESA, in the form of a complete rewriting of the statute.  Either way, change is coming...  

ESA in the news: Obama reverses Bush, Wyoming and Alaska hope to reverse Obama, and other stories of fishermen, falcons, turtles, salmon and butterflies


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President Obama is undoing the Bush administration’s anti-environmental legacy, says the New York Times.  Rejecting Bush’s arguments about “streamlining” the process, he repealed the changes to the ESA consultation process.  MSNBC weighed in too, noting that the agencies have not yet acted on an equally controversial polar bear rule.  Meanwhile, a Newsweek report anticipates many more decisions to list species as endangered or threatened.    Incredibly, since 2001, 94 percent of all new listings have been compelled by lawsuits or action initiated by the non-profit Center for Biological Diversity.

One of the species often at issue in litigation is the sage grouse, yet the overall sage grouse population is on the rise in Wyoming as part of the bird's cyclical trends, and the bird -- an indicator species of regional ecological health -- is benefiting from the state's sage grouse conservation plan, and voluntary conservation measures on private lands.  However, the Casper Star-Tribune reports that the U.S. Bureau of Land Management is not following the state plan, and continues to issue controversial oil and gas leases.  Wyoming residents remain nervous about the U.S. Fish & Wildlife Service’s ongoing evaluation of whether to list the sage grouse pursuant to the Endangered Species Act.  

Like their Wyoming counterparts, Alaskans are concerned about the potential impacts of ESA listing decisions on their local economy, and the State is suing the federal government over the decisions to list the polar bear as a threatened species, and the Cook Inlet beluga whale as endangered.  In fact, state lawmakers agreed to spend $1.25 million on litigation over the two listings, reports the New York Times green blog.  The reintroduction of an experimental population of wood bison has state residents equally nervous.  Still, the ESA coordinator for the Alaska Department of Fish & Game insists that his state really is conservation-minded.  “There’s this impression that the state doesn’t care about conservation, and I can assure you that we do.”

Photo of a polar bear swimming in open waters by Geoff York, World Wildlife Fund, published at in anarticle entitled "Scientists Report Further Shrinking of Arctic Ice"

But on the MatterNetwork, ecojournalist Edward Humes has little patience for the Alaska's and Wyoming's arguments.  He argues that the ESA should be used to aggressively change human behavior and to confront the challenges of climate change, forcing us to shift to renewable energy in order to save species like the polar bear.  The current system, he says, is simply too expensive, and invisibly subsidized.  "It is now incumbent on the government to help put a gradual shift in motion by providing incentives and rewards for the clean and green, and penalties for the dirty and wasteful. We have the laws to begin this process." offers an equally insightful article on wolves, polar bears, and the realities of local and global politics and the ESA.  And a heartfelt editorial published in the Los Angeles Times, accomplished birdwatcher Ms. Olivia Gentile also praises the ESA, suggesting that everyone would feel a lure and love towards conservation if they just took a few moments to watch an urban peregrine falcon.  Until we banned DDT, humans nearly destroyed these and other bird species, and we need laws like the ESA to help us help them.  
While lofty ideas and debate abound, there were numerous stories about the ESA in practice too. reports that the San Francisco Recreation & Parks Department is debating what to do with Sharp Park, one of the premier affordable golf courses in Northern California, but also home to the San Francisco garter snake and California red-legged frog, both endangered species.  While compliance with the ESA might prove expensive in California, the failure to comply with the law could mean jail for a North Carolinian citizen who was indicted by a federal grand jury on charges of illegally importing, and attempting to import endangered and prohibited wildlife into the United States, and the Georgia based Daily Citizen reported that the ten endangered Asian Arowana fish in this case have a fair market value of about $25,000.   And Oregon voters will have to decide on their own whether to fund a habitat conservation plan for Fender’s blue butterfly (picture below from a creature once thought to be extinct, reports the Corvallis Gazette Times.  Under the terms of the HCP and proposed Incidental Take Permit, the county could do construction and maintenance activities that might damage any of the covered species on county-owned land, and in exchange, the county will minimize, mitigate and or replace any habitat loss by purchasing conservation easements from willing landowners in “blue zones” -- areas identified as actual or potential habitat for the Fender’s blue.


The practical realities and economics of the ESA have been particularly intense this week for fishermen.  Maine officials have decided to call off this year's Atlantic salmon fishing season, after pressure from the federal government, reports   The Salt Lake Tribune reported that rare, threatened greenback cutthroat trout were discovered in a small creek of the LaSal mountains, leading Utah wildlife officials to issue emergency regulations.  Sea turtles in the Gulf of Mexico need emergency protection too, says NOAA, as reported in the Mississippi Press.  This past week, the agency announced new fishery regulations, banning commercial longline fishing boats from the eastern half of the Gulf after concluding that the longline fishery was responsible for the deaths of nearly 1,000 turtles within a year and a half.  The emergency rule is likely to be followed by a broad-reaching summertime fishery closure.  See also Environment News Service.  And in Skagit County, Washington, the Bellingham Herald reports that salmon fishers like the Swinomish Tribe haven’t been able to fish like they used to, mostly because of the collapse of so many Puget Sound salmon populations.  Regional water management structures, including a local dike district’s new tide gates, prevented juvenile salmon from reaching their rearing habitat.  Addressing issues raised in recent litigation between the Swinomish Tribe sued and a local Dike District, Skagit County Dike District No. 22, the two groups became partners in a plan to restore 200 acres of estuary habitat in the Skagit delta, and submitted their plan to the federal judge.

Salazar and Locke Announce Repeal of Bush Administration Rules Changing Consultations under the Endangered Species Act


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In a joint press release issued today, the Departments of Interior and Commerce announced a decision by Secretary Salazar and Secretary Locke to "Restore Scientific Consultations under the Endangered Species Act to Protect Species and their Habitats."  The agencies explained that they were revoking an eleventh-hour Bush administration rule that changed the Endangered Species Act (ESA) consultation process.  Their decision requires federal agencies to once again consult with federal wildlife experts at the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration – the two agencies that administer the ESA – before taking any action that may affect threatened or endangered species.

KEITHINKING: The decision represents a complete repudiation of the Bush Administration's efforts to alter the ESA consultation process, wholly repealing the rule, and exercising the authority granted by Congress, in the 2009 Omnibus Appropriations Act.  However, as explained in earlier ESA blawg postings (see especially Aug 16, 2008 and Nov. 22, 2008 and Dec. 11, 2008), some modification of the Section 7 process may -- eventually -- be appropriate, and the joint press release also said that "the two departments will conduct a joint review of the 1986 consultation regulations to determine if any improvements should be proposed."        

ESA in the News: lobbying, legislation and NOAA biological opinion with jeopardy finding on pesticides


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An interesting article from the New York Times today about the potential use, or in some minds, abuse, of the Endangered Species Act as a tool to change federal climate change policy (or lack thereof).  On the one hand, the article notes that EPA issued a finding last week that "greenhouse gases threaten public health and welfare," see Greenwire story, and environmental advocates argue that EPA's conclusion should lead the Interior Department to repeal a Bush Administration rule that "explicitly exempted greenhouse gases from Endangered Species Act regulation."  On the other hand, the Interior Department may not agree, because "David Hayes, Obama's nominee to be Salazar's second-in-command, told senators during his confirmation hearing that the endangered species law was ill-suited for addressing climate change."  As another Interior spokesperson said: "We have zero legislative authority to regulate carbon emissions. That's just not what we do."

Meanwhile, a few blocks down on Constitution Avenue, species protection has re-emerged as a priority topic among legislators.  MongaBay notes that "The US House of Representatives passed today, the 39th Earth Day, two bills that would aid some of the world’s most embattled wildlife: the Great Cats and Rare Canids Act (H.R. 411) and the Crane Conservation Act (H.R. 388)."  And Gannett reports that the pet lobby has reacted, predictably, with fits over the "Nonnative Wildlife Invasion Prevention Act," because species deemed invasive by federal wildlife biologists would be barred from entering the country.  For some perspectives on why this bill -- or at a minimum, some form of pet industry regulation -- has become necessary, visit my "Exotic Consequences" article for PawTalk about how the invasion of pythons threatens endangered and other species in the Everglades.  Simply put, pet stores, and pet owners, simply cannot be trusted NOT to release their unwanted pythons, iguanas, and even piranhas into the environment.  Sure, it's not all pet stores, nor all pet owners.  But the irresponsibility of some is creating huge problems for everyone, so government intervention, and regulation, has become unavoidable.

The invasion of exotic species in Florida has become such a problem that it is spawning new trapping enterprises by folks like the author of the Wildlife Removal Blog.

In other ESA news, a recent NOAA biological opinion looks like it could bring yet another layer of controversy to the region.  According to the Kitsap Sun, citing NOAA, "continued use of the pesticide carbaryl and two related chemicals could jeopardize the survival of salmon and steelhead populations throughout the Northwest."  As the biological opinion explains, the scope of this conclusion is significant:

"After reviewing the current status of California Coastal Chinook salmon, Central Valley springrun Chinook salmon, LCR Chinook salmon, Puget Sound Chinook salmon, Sacramento River winter-run Chinook salmon, Snake River fall-run Chinook salmon, Snake River spring/summerrun Chinook salmon, UCR spring-run Chinook salmon, Upper Willamette River Chinook salmon, Central California Coast coho salmon, LCR coho salmon, Southern Oregon and Northern Coastal California coho salmon, California Central Valley steelhead, Central California Coast steelhead, LCR steelhead, MCR steelhead, Puget Sound steelhead, Snake River Basin steelhead, South Central California coast steelhead, Southern California steelhead, UCR steelhead, and Upper Willamette River steelhead, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is NMFS’ Opinion that the registration of carbaryl and carbofuran is likely to jeopardize the continued existence of these endangered or threatened species."

Despite the jeopardy conclusion, NOAA does propose a Reasonable and Prudent Alternative that would allow continued use of the pesticides, with multiple limitations on the use of carbaryl, carbofuran, and methomyl: (1) Do not apply pesticide products within specified buffers of salmonid habitats; (2) Do not apply when wind speeds are greater than or equal to 10 mph; (3) do not apply pesticide products when soil moisture is at field capacity; (4) Report all incidents of fish mortality that occur within four days of application; and (5) EPA shall develop and implement a
NMFS-approved effectiveness monitoring plan for off-channel habitats with annual reports.

ESA in the news: Happy Earth Day (?)


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Media reports continue to warn of the steady march of climate change, with its alteration of habitat, and the threat of species extirpation or extinction.  RedOrbit noted the new book by University of California biologist Anthony Barnosky, "Heatstroke: Nature in an Age of Global Warming," wondering whether wilderness can remain natural. discussed climate change and the isolation of Rocky Mountain butterflies, David Suzuki commented that "Caring for caribou is a matter of urgency," and writes about IPCC warnings of Earth's precarious future,  

Then again, don't tell the wolves that their habitat is contracting.  According to the Oregon-based News-Review, the Oregon Department of Fish and Wildlife confirmed that Oregon has wolves, "but we’re still waiting to see if they persist and if we will ever have a high number of wolves in the state.”  But elsewhere, like Montana, wolves still get shot, notes the Clark Fork Chronicle.

Speaking of shooting wolves, the same "people-first" logic that some western voices have applied to wolves was recently resurrected in a new direction this week.  Don't bother with the details of the Endangered Species Act when where are rattlesnakes involved, said George Frasher in the Beauregard Daily News.  "In the conflict between man and rattlesnakes, the eventual loser is the snake. That is the law of nature, which supercedes any law that can be enacted in any legislature."  But others disagree.  A Duluth editorial said Don’t weaken fish and wildlife’s ‘bill of rights’, and Bart King argued in the Atlanta Journal Constitution that we can’t afford to abuse Earth, or laws like the ESA, otherwise "the idea of celebrating Earth Day will seem like a cruel joke."

Despite Earth Day, the Bush administration's efforts last minute regulations altering the ESA consultation process remain on the books, Joe Scott reminded readers in the Seattle Times, "Salazar has until May 9 to undo one of Bush's 11th-hour and more regressive policies — one that would gut America's signature environmental law and the strongest tool we have to protect and restore our majestic plant and wildlife heritage."  Jake Richardson echoed the sentiments at, but relax, says Van Ness Feldman.  The Obama Administration is actively reviewing the ESA rule and on Monday, March 23, a California federal district court judge overseeing court challenges to the section 7 consultation rule "granted a 60-day stay in that proceeding at the request of the federal agencies. In their stay request, the federal agencies represented that the Obama Administration is examining and reconsidering the rule as directed by a March 3, 2009 presidential memorandum. Further, the federal agencies noted that, as a result of Section 429 of the recently enacted omnibus appropriations bill (Pub. L. No. 111-8), the section 7 consultation rule may be withdrawn without following notice and comment rulemaking under the Administrative Procedure Act, if such action is taken no later than May 10, 2009."  A Washington Post story and an AP story available in the Albany Times Union offered similar insights.  

As for the latest wave of lawsuits, the AP reports that WildEarth Guardians sued the U.S. Fish and Wildlife Service because it "failed to act on a petition seeking protection for two rare plants, a jackrabbit and a salamander found in the Southwest."  The Center for Biological Diversity filed suit, notes a San Diego paper, to force the U.S. Fish and Wildlife Service to provide that protection for the Hermes copper butterfly by declaring it a threatened or endangered species.  And the Jackson Hole News and Flathead Beacon report that more wolf litigation is expected.  Meanwhile, the Sacramento Delta litigation seems like it will never end.  Congressmen want more water for California farmers, says the Mercury News, and notes that local Delta farmers are trying to stop the Bay Delta Conservation Plan, calling it "a thinly disguised process to build a peripheral canal and increase water exports out of the California Delta."

Oh, yeah, Happy Earth Day.

Earth Day 2009 poster, designed by  Jan Martin Will, from the Earth Day Network.

FWS rejects petition to list Longfin smelt population in Sacramento Delta


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74 Fed. Reg. 16169 / Vol. 74, No. 67 / Thursday, April 9, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List the San Francisco Bay-Delta Population of the Longfin Smelt (Spirinchus thaleichthys) as Endangered / Notice of 12–month petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12–month finding on a petition to list the San Francisco Bay-Delta population of the longfin smelt (Spirinchus thaleichthys) as endangered with critical habitat under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that the San Francisco Bay-Delta population of the longfin smelt does not meet our definition of a distinct population segment (DPS), as identified in our DPS policy (61 FR 4721, February 7, 1996). As a result, listing the species as a DPS is not warranted. However, we are initiating a status assessment of the longfin smelt, and we solicit information on the status of the species range wide.

The longfin smelt is a euryhaline (tolerant of variable salinities) pelagic (lives in open water) fish that inhabits various depths of the water column depending on the individual’s life stage.  The historical and current range of the longfin smelt is from Alaska southward to the San Francisco Bay-Delta in California.  According to the California Department of Fish and Game, the species is affected by regional water management, and an overall effect of high freshwater outflow through the Delta appears to be an increase in the amount and quality of nursery habitat, increased feeding opportunities, and reduced mortality for the longfin smelt.

KEITHINKING: After a very preliminary review of the petition to list the longfin smelt, FWS found that listing may be warranted.  See May 2008 ESAblawg.  Here, upon further review, FWS concluded that listing was not warranted, and more information was needed for the species, rangewide.  In considering whether the longfin smelt populations in the Delta were a distinct population segment, FWS analyzed two major factors.  
     First, the DPS analysis considers whether the population is discrete, focusing on geographic isolation.  (For example, Central Park squirrels are a discrete population.)  FWS found that the longfin smelt populations in the Delta were not discrete because it is likely that they be able to swim elsewhere in the Pacific.  In reaching this conclusion, FWS rejected the conflicted published opinion of University of California professor Peter B. Moyle, and FWS also acknowledged that “The distance that longfin smelt could swim or be transported from the San Francisco Bay-Delta is unknown.”
     Second, the DPS analysis considers whether the population is significant, often focusing on genetics and morphology.  (Central Park squirrels are not genetically or morphologically significant -- yet?)  FWS concluded that “There is also no indication that longfin smelt differ morphologically between the San Francisco Bay-Delta population and other populations…  Additional study should provide more information on the distribution of genetic variation within the species and determine if longfin smelt from  different locations are intermixing.”  However, FWS also recognized that “Because of its distinctive characteristics, the San Francisco Bay-Delta population of longfin smelt was once described as a species separate from more northern populations. (Moyle 2002, p. 235).”
     In contrast, under state law, the California Department of Fish & Game recommended that Longfin smelt be classified as “threatened” and that additional protections were needed.   As noted in prior ESAblawg postings, the Delta smelt is a huge source of ESA related conflicts with regional water managers, and the listing of the longfin smelt would further complicate problems for the Central Valley Project and State Water Project in the Sacramento region.
     Yup.  We're thinking the same thing.  More litigation coming soon.

WANT MORE excerpts and links...?  

Dollars, sense, and the Endangered Species Act


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Yes, its an important and controversial law.  But Noah Greenwald says we have "60 days to save the ESA" on The Stump, citing the March 11 passage of HR 1105 Omnibus Appropriations Bill giving Secretary of Interior Ken Salazar 60-days to permanently revoke these regulations.  Hyperbole?  The press release from the House Republicans on the Committee on Natural Resources was equally remarkable.  Despite the widespread characterization of these last-minute ESA changes as Bush administration "midnight regulations," see Washington Post, and despite the huge volumes of public comments that were largely ignored, see L.A. Times, some congressman suggested that the law would "allow the Obama Administration to change rules without any public notice or public comment period, and threatens efforts to create new jobs in an already strapped economy."  

Polarizing policy considerations aside, some people are starting to ask questions about the dollars associated with the Endangered Species Act.  The Heritage Foundation recently pondered the history of the ESA under the heading of More Economic Harm Than Environmental Good, but when Carol Vinzant, in WalletPop, asked how much does the endangered species act cost, she reached a different conclusion, noting that "the 2009 budget for the Endangered Species Act was $146 billion. Which would you rather spend the money on: all the endangered species in the country, or just 1/100th of the $163 billion we've invested in AIG?"  Escaping conventional thinking, Gary Francione even ridiculed citizen suits on Opposing Views, concluding that the dollars spent on litigation opposing circus elephants would be better spent "decreasing the demand for such spectacles through creative, nonviolent abolitionist education."

Speaking of cost-benefit analysis: in the U.S. District Court in Oregon, Judge Redden continues to ask tough questions about whether hydroelectric power generating dams, and endangered salmon populations, really can coexist.  See, 2017 is just around the corner, by Paul Develder on High Country News.  Litigants in the ongoing Arizona case involving jaguars and the completed D.C. case involving Ringling Bros. elephants, however, certainly expect rulings in their cases much sooner than 2017.  And thanks to a burst of complaints, and notices of intent to sue, other U.S. District Court judges can soon look forward to lawsuits related to prairie dogs, , sea turtles, northern spotted owls, and the amargosa toad.

Salazar, science and centrism


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Secretary Salazar appears to be well on his way towards moving the Department of Interior back to a more centrist position.  The agency has already listed two new endangered species (the reticulated flatwoods salamander and today's hawaiian vine), but also carried forward the Bush administration's partial delisting of the wolf in Montana.  Although the decision may be controversial with environmentalists, an insightful blog by the questionable authority notes that whatever your view of the merits, the absence of direct White House involvement that decision is a refreshing sign that science, not politics, may be returning to the forefront in ESA decision-making.  See related New York Times article.  Similarly, the nominee for Deputy Secretary of the Interior, David Hayes said that the Endangered Species Act (ESA) "is not well suited to dealing with climate change, which is a global phenomenon" and further stated that Secretary Salazar favors "commonsense" implementation of the ESA.  See Van Ness Feldman post.

Visit my guest blog on exotic pythons invading the Everglades at


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For years, irresponsible pet owners – unwilling to destroy their too-big-to-keep reptile friends – have silently released their unwanted Burmese pythons into the Florida Everglades.  The pythons survived.  The Everglades now squirms with breeding populations of hungry snakes, and the exploding populations of this exotic species could doom other species.  Read the rest of the story at

Photo of Burmese python in the Everglades from the South Florida Water Management District.

Obama begins reversal of Bush's ESA consultation regulations by executive memo


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Office of the Press Secretary

For Immediate Release March 3, 2009

March 3, 2009


SUBJECT: The Endangered Species Act

The Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., reflects one of the Nation's profound commitments. Pursuant to that Act, the Federal Government has long required a process of broad interagency consultation to ensure the application of scientific and technical expertise to decisions that may affect threatened or endangered species. Under that interagency process, executive departments and agencies (agencies) contemplating an action that may affect endangered or threatened species have long been required, except in certain limited circumstances, to consult with, and in some circumstances obtain the prior written concurrence of, the Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) -- the expert agencies that have the primary responsibility to ensure that the ESA is implemented in accordance with the law.
On December 16, 2008, the Departments of the Interior and Commerce issued a joint regulation that modified these longstanding requirements. See 73 Fed. Reg. 76272. This new regulation expands the circumstances in which an agency may determine not to consult with, or obtain the written concurrence of, the FWS or NMFS prior to undertaking an action that may affect threatened or endangered species. But under the new regulation, agencies may continue the previous practice of consulting with, and obtaining the written concurrence of, the FWS and NMFS as a matter of discretion.
I hereby request the Secretaries of the Interior and Commerce to review the regulation issued on December 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA.

Until such review is completed, I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with statutory authorities.
The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the Federal Register.


ESA in the news: Pres. Obama, Judge Wanger, and Arizona Jaguars


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According to environmental activists, "Threatened species have ally in Obama" reports the Fayetteville Observer.  And the recent legislative efforts to repeal the Bush Administration's midnight regulations changing the implementation of the ESA certainly suggest that the environmentalists have the ears of the new leaders.  See prior ESA blawg post.

Elsewhere in the nation's courtrooms, the ESA controversies continue.  In California, Judge Wanger granted a three-month extension to allow the Federal government to finish rulemaking to protect endangered winter-run Chinook salmon, spring-run Chinook salmon and Central Valley steelhead, and according to the Bradenton Herald, "the U.S. Bureau of Reclamation said west Valley farmers will receive no federal water this season."   See also, California Farm Bureau. And in Washington D.C., the trial over whether Ringling Brother's keeping of elephants violates the ESA continue to receive publicity.  See Atlanta Journal Constitution, and, and the UK Daily Mail.


Finally, as reported in Peterson's Hunting, the Arizona Game and Fish Department (photo source) captured and collared the first wild jaguar in Arizona.  Jaguars, long thought to have their habitat in Mexico, have also been spotted in New Mexico.

Battle over Bush Administration's consultation regulations begins anew.


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Yesterday, the Center for Biological Diversity praised a U.S. House of Representatives Appropriations Committee for moving an omnibus appropriations bill that, if passed, "will give President Obama power to rescind rules weakening both the Endangered Species Act and protections for the polar bear."   See Press Release. CBD says that the rules are "a disaster for the polar bear and hundreds of other species,” and the legislation will enable the administration to avoid another procedural rulemaking process and "rescind the rules so old rules will take effect immediately."
Unsurprisingly, the cattle farmers, and others, express a competing viewpoint, and they "urge opposition" to the "recent improvements" to the ESA.  See CattleNetwork. From their perspective, the regulations"expedite consultations between agencies and allow for a more efficient use of limited resources."

Congressional Republicans today took up the cattle farmers cause, reports the New York Times. According to Sen. Lisa Murkowski (R-Alaska) and Rep. Doc Hastings (R-Wash.), repeal of the regulations, and the reinstatement of the old rules (in place for more than a decade) could empower the Department of Interior, creating "with far-reaching policy implementations for climate change and energy production without the slightest bit of debate is not good public policy."  The NYT also noted that Interior Secretary Ken Salazar has said there is "no doubt" that climate change is having an impact on wildlife, but dodged a question on whether he might use the Endangered Species Act to control the greenhouse gas emissions.

For more information on this topic, search for "consultation regulations."  

Federal Circuit refuses request for en banc hearing on Casitas case, and battle of Western water law vs. ESA may head to SCOTUS


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Previously, ESA blawg readers have learned about the enormous implications of the ongoing Casitas water district litigation.  See prior ESA blawg postings on the original Federal Circuit decision and the request for en banc review.  In a nutshell, the property rights concepts embodied in western water law are in serious conflict with the Endangered Species Act.  According to the prior three-judge panel opinion, an attempt by government to require water to be left in a river to benefit fish -- even fish on the brink of extinction due to human excess -- constitutes use of private property for public benefit and thus triggers a taking of some property that must be justly compensated.  This week, the Federal Circuit denied rehearing en banc, and the case may soon be headed for the U.S. Supreme Court.  See also

KEITHINKING: The opinion has four significant problems. As a factual matter, (1) the fish came first, and (2) humanity redistributed and overallocated the available supplies.  As a legal matter, (3) the opinion confuses physical and regulatory takings, and (4) the government can only "take" something that people already had a right to, but under California law, water rights cannot be physically appropriated, occupied, or invaded by a mere restriction on the exercise of such rights.  

Photo of the U.S. Court of Appeals for the Federal Circuit at Lafayette Square from the court's website, courtesy of the historical society.

The trouble with tourists...


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Sure, ecotourism can be helpful, and brings much-needed dollars into conservation causes.  But tourism and recreation has consequences too, as three news stories recently made clear.  Resident orca populations in Puget Sound are starving as they try to flee the tourist boats, says an article in the Seattle Times.  The size of trophy sport fish caught in the Florida Keys has tragically declined, as shown by a series of photographs in Science Daily.  The Galapagos Islands are threatened by invasive species and a growing number of tourists disturbing the pristine wildlife, reports the UK Telegraph.  

In the Galapagos Islands, since 1991, tourist numbers rose from 41,000 to 160,000 annually, and local population counts grew 4% annually to over 40,000.  Photo from Squidoo

The Council of Elders speaks; will Obama Administration listen?


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In a remarkable document, Recommendations to the Obama Administration for an Improved Columbia River Salmon Recovery Program (January 2009), the Council of Elders and Resource Renewal Institute -- largely consisting of retired wildlife managers and salmon experts -- concluded as follows: "The status of the Columbia River salmon is dire. They are in such peril that many species are in worse condition than before listing under the Endangered Species Act. The Council of Elders submits this report to apply its collective natural resources expertise and policymaking experience, both in and out of government, to ensure the survival of the salmon. The politically driven administration of the Endangered Species Act has thwarted appropriate resource management. This problem, combined with the threat of climate change and expanding human populations, overwhelmingly demonstrates the need for an immediate change in salmon recovery efforts. Only intervention by the highest levels of the Obama administration can cut through the varying interests to save the fish from looming extinction. Recovery is achievable through the improved and proper application of the Endangered Species Act. The guiding principles of this effort should be accountability, use of the best available science, and efficiency. To this end we offer the following recommendations and urge the administration to make salmon recovery an immediate and ongoing priority."  The report offered eight specific recommendations. See also, The Oregonian.


Good news stories on ESA include whales, sea turtles, wolves, eagles, and butterflies. But for the American pika, well, not so good...


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The last few days offered a rare series of good news stories on the Endangered Species Act.  CNN reports that volunteers and retirees are watching the Florida coastline to help protect migrating endangered, but increasing, North Atlantic right whales.  The Honolulu Star-Bulletin reports that green sea turtles and hawksbills are making a comeback. provides another anecdotal story about urban nesting bald eagles as proof of the species recovery and well-earned delisting.  An editorial from reputable scientists in the Anchorage Daily News called the ESA "a good law that works in Alaska."  An AP story in the Jamestown Sun offers a favorable perspective on wolf protections under the headline "Wolf experts dispel myths, foster understanding."   And Softpedia discussed scientific papers finding that assisted colonization may be an option to help some species, like butterlfies, avoid extinction if global warming alters their existing habitat.

Of course, other stories of mixed or bad news appeared too.  The Christian Science Monitor and Reuters reported that The alpine-dwelling American Pika could be the first species outside of Alaska listed as an endangered species because of global warming, with the Center for Biological Diversity ready to file a lawsuit if the U.S. Fish and Wildlife Service does not act soon.  The San Francisco Chronicle, citing data from the Pacific Fishery Management Council, noted that "The smallest number of Pacific Ocean salmon ever recorded swam back to the Sacramento River via San Francisco Bay last fall."     WMBB News 13 from Florida's Walton County reports that changes in the critical habitat for the flatwoods salamander could "slow traffic" by altering highway planning efforts.  The Village News reports that California politicians in Sacramento asked Governor Schwarzenegger to call for a meeting of the Endangered Species Committee, aka the "God Squad", and their letter "requests an appeal of water restrictions on California as mandated by federal court rulings to protect the Delta smelt."  

The American pika is an alpine species known as the "rock rabbit," and depends on group communication to spot predators.  Highly sensitive to warm temperatures, the pika can’t survive in temperatures above 80 degrees.  Photo from  National Park Service.

And yes, more lawsuits were threatened, most notably by the Center for Biological Diversity, which filed a petition with FWS to protect 42 spring snail species from Nevada, Utah, and California, alleging that "unsustainable groundwater pumping threatens" these species, and as well as "rural residents and future generations."

ESA in the news: exemptions, editorials, entrees and more.


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The ESA litigation circus continues.  Judge Redden is hearing yet another case in Oregon regarding the tension between migrating salmon and the Federal Columbia River Power System.  See The Seattle Times.  The Center for Biological Diversity notified the federal government of its intentions to sue over two species, the desert tortoise, and the the Moapa dace (a finger-length fish only found at the headwaters of the Muddy River north of Las Vegas).  See Las Vegas Review-Journal.  Topping off the litigation news, animal rights activists sued Ringling Bros., in a case heading to trial this week.  See Wall Street Journal.  

Lawsuits like these may have led some California lawmakers to declare the ESA "horrendous" and "economic terrorism," further causing them to seek exemptions to address the "fish against fish" problems of water management in the Sacramento Delta.  See The Sacramento Bee, and The  Similar legislative protests are heard from lawmakers in Wyoming upset over the potential ESA protections for prairie dogs.  See The Gillette News-Record.  

Unlike the lawmakers' narrow proposals, George Will's latest editorial does not stop with a mere local exemption, instead, he declares the Endangered Species Act contrary to Darwinian philosophy.  See Washington Post  Mr. Will neglects to mention that humanity's excesses have played an enormous role in species decline, but that humble recognition led NOAA to consider increased restrictions on the grouper fishery to protect sea turtles.  See St. Pete Times.  The Anchorage Daily News even concluded that "80 years ago humans unintentionally removed the wood bison from nature. Now it is our responsibility to put them back."  

By the way, if you are responsible for cooking (and catching) dinner, be sure to check the laws.  A California homeless man went to jail for eating a steelhead trout, see, and two Bahamian tourists earned the same fate for posting photos of an iguana dinner on Facebook. See Gizmodo

ESA in the news: more litigation


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Expressing outrage with abuses by the Bush Administration, a Las Vegas Sun editorial praised California's decision to sue the Federal government over the proposed Endangered Species Act regulations, and the Center for Biological Diversity announced another expected lawsuit brought by a coalition of environmental groups to challenge the Bureau of Land Management for failing to consider the effects that a commercial oil-shale industry in Colorado, Utah, and Wyoming will have on endangered and threatened species. Portland's News Channel 8 offered a fairly lengthy (for TV) discussion of the hopes in Oregon that the Obama adminstration will prove greener-minded.  Covering a local interest angle, the St. Louis Post-Dispatch recently discussed the future of the Mexican gray wolf and the American burying beetle.

The American burying beetles are the largest of the carrion beetles -- up to one-and-a-half inches long.  Named for its practice of burying its food, the beetle uses special chemical receptors in its antennae to detect dead meat. These receptors are so sensitive that they pick up the carcass' signal from a long distance and usually within an hour after the animal's demise. Caption information from the St. Louis Zoo's Center for American Burying Beetle Conservation, photo from FWS published by

ESA in the news: California sues Interior over consultation regulations


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California Attorney General Brown pushes forward with a lawsuit challenging the Bush administration's proposed amendments to the Endangered Species Act's consultation regulations, and according to the LA Times,Ken Alex, senior assistant attorney general, said California has won practically every case that has been ruled on.  (I think he forgot about the Delta smelt cases.)  Moving on to more hopeful topics, the The Grand Island Independent offers an article on the incremental but continuing evolution of a potential Bush administration success story, the Platte River recovery program.  Hardly satisfied with one good news story, Interior Secretary nominee Salazar wants to restore the reputation of the Department of Interior, according to the Denver Post.  Reaching beyond the U.S. borders, ebay promises to do more in 2009 to help protect elephants and avoid the ivory trade.  By the way, the ESA turned 35 this week, as noted by the Tuscaloosa News.

KEITHINKING:  As noted in my recent tweet (from my RSS twitter feed), California's suit against the Federal government could create unique opportunities for the Obama administration to craft a settlement and consent decree that quickly undoes Secretary Kempthorne's efforts to amend the ESA Section 7 consultation process.  Also, a recent Miami Herald editorial noted that "the Bush administration this month gave the National Rifle Association a parting gift by lifting a decades-long ban on concealed weapons in national parks."  As a result, concealed weapons are now legal in Everglades National Park.  Perhaps these gun owners can do their part for endangered species and shooting the pythons that threaten to eat native wildlife? (But don't forget, we need to change the no hunting and no collecting rules too, but then again, excessive hunting and poaching was why Everglades National Park was created in the first place, so...)

Thanks to irresponsible pet owners, pythons now breed in the Everglades, and present a significant invasive species management problem .  See Davidson College's Everglades Burmese Python Project.   Photos above from South Florida Water Management District.  See also this photo from Wikimediacommons.

Obama's NOAA appointee, Lubchenko, an environmental science heavyweight


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Last week, President-elect Barack Obama nominated Oregon State University professor Jane Lubchenco to head the National Oceanic and Atmospheric Administration.  See Washington Post and New York Times.  According to her home state paper, The Oregonian, Ms. Lubchenco is "an internationally known marine ecologist who is deeply concerned about climate change and overfishing."   In addition to implementation of the Endangered Species Act in marine affairs, Lubchenco will oversee federal regulation of oceans (including issues such as coral reef and marine sanctuary protection), satellite operations, weather prediction (including global warming science) and fish harvests.  Wikipedianotes that her impressive list of credentials includes "a MacArthur Fellowship, a Pew Fellowship, eight honorary degrees (including one from Princeton University), the 8th Heinz Award in the Environment (2002) and the Nierenberg Prize for Science in the Public Interest from the Scripps Institute of Oceanography (2003)... and 1997-98 president of the American Association for the Advancement of Science."  Notably, Oceana and NRDC  praised the nomination.

Photo from Wikipedia.

ESA in the News: Secretary Salazar (officially)


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According to his home state newspaper, the Denver Post, Endangered Species Act watchers expect controversies with the newly announced nominee for Secretary of Interior, Senator Ken Salazar (D-Colo):  "One area where Salazar is drawing fire is his positions on the Endangered Species Act.  In 1999, as state attorney general, Salazar opposed the listing of the black-tailed prairie dog under the act, saying there was insufficient data. The Fish and Wildlife Service is evaluating whether the species should be protected.  Critics such as WildEarthGuardians and the Center for Biological Diversity contend that Salazar tilts in favor of agribusiness over threatened species.  Salazar also is chided by these groups for endorsing the Bush administration's appointment of Gale Norton, a Coloradan, as interior secretary.  Still, a large number of environmental groups have praised his selection."

As Senator, Mr. Salazar proposed tax incentives for farmers and ranchers to assist endangered and threatened species, as his own press release explained:  Creating new tax incentives related to the recovery and restoration of endangered species: Senators Salazar and Allard are co-sponsors of legislation (S.700) that would provide financial incentives for private land owners including farmer and ranchers, to facilitate the recovery of threatened and endangered species, while preserving the opportunities for productive use of land. The Endangered Species Recovery Act would provide $400 million annually in new tax credits and offer deductions and exclusions to farmers and ranchers who take steps to facilitate the recovery of engendered or threatened species on the properties they own. Species that could be protected in Colorado include: Piping Plover, Least Tern, and Southwestern Willow Flycatcher, among others.

Offering insightful commentary on the appointment, concluded that Senator Salazar will make a "decent DOI chief."

ESA in the news: Secretary Salazar, NRDC's tree-listing efforts, crashing red knots, smuggled monkeys etc.


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U.S. Senator Ken Salazar, D-Colo., is rumored to be President-Elect Obama's choice as the new Secretary of the Interior, and thus, a leading figure overseeing the implementation of the Endangered Species Act. considers him a moderate, calls him a centrist, and the Denver Business Journal reported excitement from other western voices, but the Center for Biological Diversity already expressed its disappointment with the expected announcement.  

Senator Salazar is a member of the Congressional Sportsmen's Caucus, previously served as head of Colorado's Department of Natural Resources, and as a water rights lawyer.  Photo from Minnesota Public Radio.

In other ESA news:
  • The Natural Resources Defense Council made quite a media splash this week with its effort to list the whitebark pine as an endangered species based upon climate change concerns.  The effort could change the dialogue over Endangered Species Act issues, with environmental groups identifying trees for protection, and thus, reaching very large tracts of habitat.  See, OMB Watch, Will Climate Change's Effect on Species Be Considered?  Plenty, If a tree falls in a forest, so does every species that depends on it.  Jackson Hole News & Guide, Greens move to save tree bears depend on.  Kansas City infozine, Tree in Trouble: NRDC Petitions for Whitebark Pine Endangered Status.  Idaho Mountain Express, Whitebark pine subject of petition: High-elevation tree is being eliminated across most of its range, enviros say
  • Meanwhile, Red knots have returned to the news, moving up on the list of candidate species in need of Endangered Species Act protections.  See and prior ESA blawg (12/11/2008)(on candidate species list) and (3/16/2008)(on red knots)
  • The Cleveland Plain Dealer reported that environmentalists are concerned about a request by NiSource Inc., which delivers the fuel for Columbia Gas, for an unprecedented 50-year permit to work on future pipelines while allowing incidental takings of plants and animals protected under the federal Endangered Species Act in Ohio and 13 other states.
  • Finally, in the you-can't-make-this-stuff-up category of criminal law news, a woman hiding a smuggled monkey under her blouse was convicted, CNN reported and the LA Times editorialized, with sentencing set for March 2009.  

Interior's mea culpa continues: Inspector General Report reveals more about Manson/MacDonald era


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According to an Investigative Report released by the Department of Interior Inspector General, two leading agency officials seriously harmed the reputation of the U.S. Fish & Wildlife Service, and cost the agency hundreds of thousands of dollars.  Readers of ESA blawg (11/28/2007) postings already learned part of the story about Julie MacDonald, former Deputy Assistant Secretary for Fish and Wildlife and Parks.  The IG also criticizes the blind support of her supervisor, Assistant Secretary for Fish and Wildlife and Parks, Judge Craig Manson.  But the official report is shocking for its tone and honest discussion about how Ms. MacDonald strong-armed agency staff into making politically-driven decisions.  See also, Associated Press, Wikipedia, Washington Post, Statement by Center for Biological Diversity and prior DOI IG Report on Ms. MacDonald.

Secretary Kempthorne announces final (but still controversial) consultation regulations.


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The Rolling Stone dubbed them a "final FU" from the outgoing President.  Despite the enormous opposition of 200,000 or 300,000 public comments, and the likely rejection by Congress and the Courts, see prior ESA musing, the Section 7 consultation regulations were announced as final today.  However, according to the 12/11/2008 statement by Secretary Kempthorne, "The rule was narrowed from the proposed regulation so there will be fewer opportunities for federal agencies to proceed without consultation."  

KEITHINKING: Further analysis is needed, but upon an initial reading, the critical and most controversial provisions in 50 C.F.R. Sec. 402.03 have indeed been re-written, and improved.  For example, the language has been modified to be much more clearly connected to global climate change (see 50 C.F.R. 402.03(b)(2), as revised in final format), rather than in a broader range of circumstances (such as the generic exemption from consultation for actions that are an "insigificant contributor" to effects on species or habitat originally proposed in 50 C.F.R. 402.03(b)(2)).  Also, while certainly controversial, probably hastily rushed to final format, and perhaps problematic, the regulations have merits too.  Most notably, these regulations would eliminate the need for time-consuming formal consultation when the effects of a proposed agency action are wholly beneficial.  Consider the changes for yourself and compare the original version of the regulations from August 2008 with the final version announced today:

(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1) Such action has no effect on a listed species or critical habitat; or
(2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
(ii) Are wholly beneficial; or
(iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.

(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1)        Such action has no effect on a listed species or critical habitat; or
(2)        The effects of such action are manifested through global processes and
(i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or
(ii) would result at most in an extremely small, insignificant impact on a listed species or critical habitat, or
(iii) are such that the potential risk of harm to a listed species or critical habitat is remote; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being measured or detected in a manner that permits meaningful evaluation; or
(ii) Are wholly beneficial.

BOTTOM LINE: The revised regulations include numerous improvements when compared with the original version.  Still, the effort to minimize consideration of global climate change in endangered species management will remain controversial, while the other nuanced terminology changes will require very careful scrutiny to be fully understood.  The media coverage, however, has missed those nuances, the litigation battle lines have already been drawn, and many people seem to think that nothing much has changed.  See Seattle Post Intelligencer and Wall Street Journal and Associated Press.

Laverty.jpg Rauch.jpg
The final regulations were signed by Lyle Laverty (left photo), Assistant Secretary for Fish and Wildlife and Parks, and a former Director of Colorado Parks and former U.S. Forest Service manager, (see National Parks Traveler and Wild Wilderness), and by Samuel Rauch (right photo), NOAA's Deputy Assistant Administrator for Regulatory Programs, and a former DOJ litigator.

DOI climate change report on legal and policy issues includes noteworthy discussion of the ESA


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In a recently announced Department of Interior document, the Report of the Subcommittee on Law and Policy: An Analysis of Climate Change Impacts and Options Relevant to Legal and Policy Issues at the Department of the Interior, the Federal government discusses the potential implications of global climate change for Endangered Species Act implementation, summarizing the possible issues as follows (see pp. 7, 29):

Over time, the effects of climate change may have a tendency to move existing plant and animal species farther north and to higher elevations to maintain the moisture and temperature resources they need. When, where, and to what extent that will occur will be difficult to predict. This ecosystem movement may ultimately shift species outside of their existing range and the currently designated critical habitat over the next few decades. This section on species movement deals with those circumstances where the species can successfully pursue that mix or resources. The next section addresses the concern that some species may not be able to survive the changing conditions.

Federal agencies have an affirmative obligation to manage their lands to protect and recover endangered species. These species may be stressed or migrate in response to increased climate change effects. Options include: (i) seeking a Solicitor's opinion concerning the legal meaning of the term "foreseeable future" as used under the ESA, to provide some guidance on the standard for relying on forward-looking models instead of historic data to make decisions; (ii) seek a Solicitor's opinion concerning the options available in designating critical habitat; (iii) exercising greater use of the ESA's authority to introduce experimental populations outside of a species historic range; (iv) streamlining the HCP process; and (v) increasing participation in voluntary species conservation through conservation easements, no-surprises, safe harbor agreements, no-take agreements, financial incentives, and recovery incentives.

KEITHINKING: It is remarkable that the Department of Interior can so openly acknowledge the potentially enormous implications of global climate change for endangered species, while simultaneously adopting new ESA Section 7 consultation regulations that clearly limit the review and consideration of those very implications when managing endangered species.  

Coral lawsuits today, but cougar lawsuits tomorrow?


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Last week, the NOAA Fisheries announced the designation of critical habitat for the threatened elkhorn and staghorn corals.  See prior ESA blawg (Dec. 1, 2008).  The Center for Biological Diversity, however, has already announced its intention to challenge that action because it insufficiently considered global warming and ocean acidification threats.  See ENN and news coverage.

While climate change threatens marine species like coral, cougar populations seem to be making a comeback in the Eastern U.S.  An increase in cougar sightings was previously noted in a March 2003 National Geographic story, and both the Washington Department of Fish and Wildlife and have noted that more cougar attacks were reported in the western United States in the 1990s, with evidence suggesting that populations could be migrating eastward.  Recent news reports provide substantially more anecdotal evidence that a shift in cougar populations may be underway.  The Washington Times reports that representatives of the Eastern Puma Research Network insist that "There are mountain lions in Maryland," while biologists from the Maryland Department of Natural Resources disagree.  While people debate, videotape footage of a cougar in Garrett County, and a reported 100 calls a year of mountain lion sightings in Maryland, strongly suggest that a big cat is indeed prowling about in Maryland.  See also, The Cougar Network(discussing uncertain evidence from Delaware and the mid-Atlantic region.)  Meanwhile, in Michigan, environmental organizations and the Michigan Department of Natural Resources engage in a similar disagreement over reported cougar sightings in the Lower Peninsula.  See The Daily Tribune, and Michigan Citizens for Cougar Recognition. In New York's Lower Hudson Valley, a resident snapped a picture of a big cat in action, leading The Journal News to report that sightings of 'Mountain lions' puzzle experts.  See picture and caption below.  And in North Carolina, The News Observer reported that a local woman spotted a cougar, but her claim was disputed by a representative of the Orange County Animal Services.  For a useful collection of cougar links, visit T&D's Cats of the World.  

The good news for the cougar aside, these stories also suggest another phenomenon: the Endangered Species Act as the law of unintended consequences at work.  As previously noted here at ESA blawg (Nov. 16, 2008), the demands of the ESA are intense.  Can you really blame the state agencies for their caution?  After all, even if the agencies in Maryland, Michigan, New York and North Carolina immediately diverted their limited resources and embraced new cougar protection strategies, how long would it be before the next lawsuit got filed?  

The eastern cougar was declared an endangered species by the U.S. Fish & Wildlife Service in 1973. In the 1970s, the U.S. Fish & Wildlife Service tried to confirm the presence of eastern cougars in the Appalachian Mountains, but was not able to do so.  Until recently, the only known remnant population in the eastern part of the continent was the endangered Florida panther.  If you ever meet a cougar in the wild, here are some tips from Washington's Department of Fish and Game...  (1) don’t run, a cougar’s instinct is to chase; (2) face the cougar, talk firmly, back up; (3) try to appear larger than the cougar; (4) do not take your eyes off the cougar or turn your back; (5) never approach the cougar, (6) if it shows signs of aggression, shout, wave your arms and throw anything you have available; and (7) if the cougar attacks, fight back (yes, self-defense is a viable option, even though harming the listed species violates the Endangered Species Act!)  Photo of a cougar (also referred to as a mountain lion) spotted recently by a resident in Columbia County, N.Y., published online by the Lower Hudson Valley's The Journal News.

More ruminations on the consultation regulations


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Updating yesterday's ESA blawg posting, I note that there is likely to be a dispute over how the Congressional Review Act applies to the ESA Section 7 consultation regulations, if they are adopted.  Major rules, meaning $100 million in annual economic impact, cannot take effect until 60 days after Federal Register publication.  5 U.S.C. §804(2).  That means that the new regulations would not become effective until the next Congress (and President Obama).  In the current OIRA report, however, the ESA Section 7 consultations rules are characterized as MINOR, thus suggesting that the Bush Administration believes itself to have a few more days (weeks?) in which it can control its own destiny (still subject, of course, to massive amounts of litigation, and DOJ policy changes).

For more on the CRA, visit a recent Politico article or the Congressional Research Service report posted by Senator Corzine.  And one more note: the Hawaii Star-Bulletin contained an editorial today on this issue, and included a quote by White House Spokesperson Dana Perino, saying the Endangered Species Act "is a tangled web that doesn't actually help support any species, including our own."  

Image of Dana Perino from wikipedia.

Ruminations on the consultation regulations


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FROM A READER: "What is going on with the proposed section 7 regs?  They were not in yesterday's Federal Register.  We have heard different stories - they are not going to be issued or they will be in out in late December.  One of our guys in DC said that Congress has to be in session for the 60 days to apply, and a solicitor told me that Obama can withdraw the regs even if they do come out.  Inquiring minds want to know!!"

KEITHINKING:  The news media is all over the place on what will happen, as an earlier ESA musing suggests.  But here are my observations:

1. The nation spoke, causing the Bush administration to address their comments.

I know some people can't believe that President Bush would ever abandon his views, but lets face it, there were 200,000 public comments, overwhelmingly opposing the regulations, and the election was 365-173.  Public outcry against the regulations continues to be intense, and, at a minimum, slowed the rulemaking process down.  Still, the LA Times reports that administration officials breezed through 250,000 public comments in less than a week, and quotes Andrew Wetzler, director of the endangered species project at the Natural Resources Defense Council, as saying "They've clearly made a predetermined decision to issue it no matter what the public comments say, which is not what we're supposed to do in this country."  According to the General Services Administration, which offers info on the status of rulemaking from the White House Office of Management and Budget, the rules were sent for their final review stage with Office of Information and Regulatory Affairs on November 13, 2008.  A recent editorial in the Washington Post skewered these and other "midnight regulations," but noted that the administration's plan was to release all regulations before  November 1, 2008.  Thus, based on the Washington Post and Oregonian, maybe nothing will happen, but the LA TImes, still seems to expect the rules to be published.  

2. The courts will soon speak, so the Bush administration is thinking about whether to risk the bad precedent.

If the regulations are adopted, a legal challenge is nearly guaranteed.  That challenge will probably succeed, because the Federal Administrative Procedure Act, 5 USC §554 states as follows:

After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

5 U.S.C. §554.  The question will be whether the Bush administration allowed meaningful participation. The critics will argue that the new rule failed to comply with the "opportunity to participate" through comments and that no "consideration" was given to those comments.  In some ways, the question would be deja vu.  In Spirit of the Sage Council, et al. v. Norton, 2003 WL 22927492 (D.C. Cir. 2003), a U.S. District Court  considered whether a controversial new rule associated with the Endangered Species Act "no suprises" policy for habitat conservation plans complied with the public comment provisions of the ESA.  The Court remanded the rules based on inadequate opportunity for public comment, leading to four more years of litigation over the matter before the No Surprises and Permit Revocation rules were eventually upheld.  

My guess?  Even if the rules are adopted, and the Obama administration is given the task of defending the agency rules, the likely outcome would be a directive to the Department of Justice to seek a voluntary remand, and the regulations would then be changed or abandoned.  FULL DISCLOSURE: The author worked on the No Surprises litigation as a DOJ trial attorney.

3.  The new leadership will reverse the regulations, so the Bush administration is considering its legacy.

The Congressional Review Act, Public Law PL 104-121, allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation.  Furthermore, as recently explained by Obsidian Wings, "Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours."  The CRA, it seems, was a driving force behind the OMB desire to get all regulations out before Nov. 1, 2008.  But with that date long gone, any new regulations that come out in these final days of the Bush administration will need to survive CRA review.

BOTTOM LINE: It remains to be seen whether President Bush and Secretary Kempthorne choose to spend their final days, and reputation, pushing through a set of doomed Endangered Species Act regulations that are opposed by the people, and probably the Courts and Congress as well.
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New regs (maybe) and big news on the Endangered Species Act, from coast to coast


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It has been a big week for Endangered Species Act news.  

On the national front, the Bush administration continues to race the clock, and Scientific American expect new "midnight regulations" to be adopted changing the ESA consultation process in the waning days of the outgoing administration -- despite the 200,000 public comments in opposition.  The Washington Post further notes that the proposed rule means that federal agencies "would not have to take global warming into account when assessing risks to imperiled plants and animals." The AP reports, however, that Congress "could reverse the rules through the Congressional Review Act, a law that allows review of new federal regulations.  But The Oregonian reports that "administration officials said Thursday they do not plan to finalize revisions."

Meanwhile, ESA news coverage included other stories from coast to coast.  

Photo of  sea turtle at Breakers Reef from the South Florida Dive Journal.

In Florida, the federal government announced critical habitat for the endangered smalltooth sawfish.  See CBD press release.  But Floridians also got a reminder that the ESA cannot stop criminal activity, and the Palm Beach Post reported that a "huge swath of stunning corals" at the Breakers Reef in Palm Beach County was "shaved from the ocean floor."  The reef is home to staghorn and elkhorn coral, threatened species under the Endangered Species Act.  

Far to the North, an accidental lynx killing is being investigated in Maine, see Foster's Daily Democrat, and new restrictions are in place for fishermen in the region to protect recently spotted right whales.  See The Ellsworth American.

On the Pacific Coast, a California Trout report entitled “SOS: California’s Native Fish Crisis.” suggests that 65 percent of California’s native salmon, steelhead and trout species will be extinct within 100 years.  Extinction could come even sooner for the endangered delta smelt, but the Fresno Bee reported that U.S. District Court Judge Wanger rejected an effort by environmentalists to cancel long-term contracts for regional water districts that get water from the Central Valley water projects.  According to the news reports, "Wanger's ruling said that it would be pointless to renegotiate the contracts to help the smelt, because the U.S. Bureau of Reclamation already has the ability to stop water deliveries to the affected districts to satisfy requirements of the Endangered Species Act."  

Agricultural interests in the Pacific Northwest were less pleased with a recent NOAA decision: a National Marine Fisheries Service biological opinion addressed the effects malathion, chlorpyrifos and diazonin have on salmon species in parts of Oregon, Washington, California and Idaho.  See Capital Press and Yakima Herald.  And also in the region, the federal government, the state of California, the state of Oregon and the PacifiCorp electric utility Thursday announced an Agreement in Principle that would remove four dams on the Klamath River, re-opening 300 miles of habitat for salmon runs upstream to their spawning areas in the year 2020.  See Environment News Service.

The law of unintended consequences: what the ESA needs, it takes, but what about other priorities?


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While an essential goal of the Endangered Species Act is to increase attention to the endangered and threatened species, compliance with the law also leads to unintended consequences.  The problem stems from a simple fact: increased ESA demands do not equate with increased government agency resources.  Three news stories this week highlighted the tensions between the ESA demands, and the other competing needs, priorities and duties of state agencies.  

With longfin smelt now protected in California, and new state incidental take regulations in place, Central Valley water management became even more difficult for the California Department of Water Resources.   "DWR estimates the emergency regulations have the potential to reduce state and federal water project deliveries up to 1.1 million acre feet, or an additional 17 percent in an average water year."  See also, San Diego Union-Tribune.  Meanwhile, in Wyoming, the state's four-man wolf management team is expected to be officially disbanded Monday, because the Wyoming Game and Fish Department is recommending to the Game and Fish Commission that it re-assign two of the department's remaining three wolf specialists.  Finally, in Western Colorado, the Colorado River Basin is the exclusive habitat for the endangered Colorado Squaw, Humpback Chub, Bony Tail Chub and the Razorback Sucker, four species preyed upon by non-native species like Cat Fish, Small Nosed Bass, and Northern Pike.  As a result, a Federal recovery program is using electric currents to eliminate the non-native species, but in the process, it also destroys the edible recreational fishery -- leaving anglers angry with the Colorado Division of Wildlife, and raising questions about the use of taxpayer dollars.

On any given day, perhaps even with any story about any one of the hundreds of listed species in the U.S., other state agencies would have similar stories to tell.  Because with each decision related to the listing, critical habitat, survival and recovery, or incidental take of any endangered or threatened species, state agencies must dedicate their limited staff time, effort and dollars to the species on the brink.  Meanwhile, other needs, and especially other species -- admittedly, species in less dire conditions -- receive less management attention.  It is the sad necessity of the ESA: endangered and threatened species usually come first (exceptions for national security aside.)  But one day, the ESA may be forced to admit a need to set priorities.  With number of ESA-listed species ever growing, and indeed, with global climate change threatening an explosion in threats to species, the absolute demands of the ESA could become increasingly difficult, or even impossible, to bear.  When that day comes (assuming it hasn't already), and in the absence of increased funding, a triage system becomes inevitable.  

According to the U.S. Department of Interior, the number of adult humpback chub, Gila cypha, in Grand Canyon stabilized between 2001 and 2005, and perhaps even increased in 2006,  after years of decline.  Supporters of the ESA could point to the law, and its focus on the need for protection of the fish, as one of the reasons.  The unanswerable question, however, is what trade-offs were made to achieve that success?  See also, ESA blawg (July 16, 2008)(on research program for endangered black-footed ferrets).

Will Obama transform ESA implementation? (A gaggle of ESA news from the google gadget...)


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"Now what?" asks Plenty.  With our nation soon to undergo a huge leadership transition thanks to the election of Barack Obama, could it be that the implementation of the Endangered Species Act could radically change too?  California Attorney General Brown has repeatedly called the Bush administration's proposed changes to the ESA consultation process illegal, warning the Department of Interior that its proposed changes could put entire species and ecosystems at risk for complete destruction.  See Imperial Valley News.  The California AG's concerns, and the call for repeal of the proposed regulations, have been echoed elsewhere, from Audubon to the Baltimore Sun.  In the Pacific Northwest, in an unprecedented convergence, timber industry reps and environmentalists have reached an agreement on the need for changes in the Bush administrations approach to Oregon timber management.  See Seattle Post Intelligencer and the Oregonian.  Indeed, with a touch of sarcasm, noted that in his remaining weeks, "President Bush aims to extend his environmental legacy," and even the National Journal has wondered whether the Bush administrations regulations would "help or hurt."   See also, NY Times, "So little time, so much damage."

Photo of a spiny dogfish, from the Guardian, citing Getty images.

The "now what" question reaches well beyond the 50 states.  On the international front, pressure for the Obama administration to green the environmental management practices of the United States is virtually certain.  Canada remains concerned about killer whale populations, says the Poaching remains a huge international problem, as exemplified by a report on Malaysian wildlife.   And changes to fisheries regulation may be necessary, as suggested by the U.K. story reported by the Times online, the Scotsman, and the Guardian, about the disappearance of sharks and rays due to overfishing, based on a study by the International Union for Conservation of Nature.  

Now what? Perhaps something completely different...

California Attorney General pushes DOJ's Solicitor General to seek en banc review of Federal Circuit's Casitas decision


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A few weeks ago, this blawg posted the results of Casitas Municipal Water District v. United States, Case No. 2007-5153 (Fed. Cir. Sept. 25, 2008).  See ESA blawg (Sept. 29, 2008).  In commentary, I warned that the ruling had significant potential consequences for ESA implementation.  Stretched to its limits, the opinion can be read to mean that simply requiring people to leave water in a watershed -- a perfectly reasonable request when excessive water use destroys that very watershed (and its species) -- constitutes a taking.   In a  letter to the U.S. Solicitor General, the California Attorney General Brown voiced his concern with this opinion, noting, among other points, that:

"the majority opinion ignores other important requirements of California water law that bear upon the appropriate analytical framework to be applied in this case. Specifically, as the State Water Board discussed in its amicus brief, under California law, water rights are non-exclusive, non-possessory, usufructuary rights. Cal. Water Code §§ 102, 1001; Palmer v. Railroad Comn, 167 Cal. 163, 168 (1914); Parks Canal & Mining Co. v. Hoyt, 57 Cal. 44, 46 (1880). As such, water rights cannot be physically appropriated, occupied, or invaded by a mere restriction on the exercise of such rights, as occurred in this case."  

In other words, the stakes are getting higher in this battle between Western water law and the Endangered Species Act...

Envirornmental groups send 100,000 comments on proposed changes to Section 7 consultation regulations


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According to a joint October 14, 2008 press release by the Endangered Species Coalition, Earthjustice, Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife, Natural Resources Defense Council, National Audubon Society, and the Sierra Club, more than 100,000 citizens submitted comments that "opposed the Bush Administration's attempt to severely weaken the Endangered Species Act."  

KEITHINKING: If the agency's decision to decline e-mailed comments was indeed intended to reduce public input, the policy backfired.  The various conservation groups encouraged citizens to e-mail comments to them, and the organizations, in turn, submitted paper versions to the Department of the Interior and the National Oceanic and Atmospheric Administration.

FWS already abandoned e-mail; is it intentionally discouraging public comment too, and ignoring DOJ's advice?


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As a regular reader of the Federal Register, I recently noted that notices published by the U.S. Fish & Wildlife Service seem to be discouraging public comments on proposed Endangered Species Act actions.  Specifically, FWS warns readers that the agency will disclose the home addresses of anyone who submits comments.  Maybe I'm reading too much into the FWS documents, but given the previous FWS decision to refuse receipt of e-mailed public comments (see NRDC Switchboard), the thought that FWS might be trying to further suppress public comment is not really much of a stretch.  

For example, in a recent Federal Register notice, announcing status reviews on 11 species, FWS states as follows: Our practice is to make information, including names and home addresses of respondents, available for public review. Before including your address, telephone number, e-mail address, or other personal identifying information in your response, you should be aware that your entire submission—including your personal identifying information— may be  made publicly available at any time. While you can ask us in your submission to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.  73 Fed. Reg. 58262 (Oct. 6, 2008).  A recently proposed rule on the piping plover included similar language.  73 Fed. Reg. 56861 (Sept. 30, 2008).  NOAA -- the sister agency to FWS also charged with ESA implementation -- offers a somewhat tamer version of this privacy "warning" in its notices.  See, e.g. 73 Fed. Reg. 55051 (Sept. 24, 2008)(Middle Columbia River steelhead recovery plan, stating that "Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.")  

There is little reason for FWS to adopt a routine practice of making public the home addresses of citizens.  In fact, the FWS  statements are particularly suspect when compared with the Department of Justice's Freedom of Information Act manual, which explains that FOIA's Exemption 6 permits the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy."  This language has been broadly interpreted by both DOJ and the Supreme Court to protect personal privacy, including the home addresses of citizens who write to the federal government.  

The worst part of the FWS statement is the suggestion that FWS "cannot guarantee that we will be able" to protect home addresses even when a citizen so requests.  FWS should read pages 559-560 of the Department of Justice FOIA manual, which states as follows: "The majority of courts to have considered the issue have held that individuals who write to the government expressing personal opinions generally do so with some expectation of confidentiality unless they are advised to the contrary in advance; their identities, but not necessarily the substance of their letters, ordinarily should be withheld."  

Furthermore, the DOJ FOIA manual at footnote 81, cites important caselaw, including the following: Save Our Springs Alliance v. Babbitt, No. A-97-CA-259, slip op. at 7-8 (W.D. Tex. Nov. 19, 1997) (concluding that release of home addresses and telephone numbers of government correspondents would not shed light on whether agency improperly considered writers' comments); Voinche v. FBI, 940 F. Supp. 323, 329-30 (D.D.C. 1996) ("There is no reason to believe that the public will obtain a better understanding of the workings of various agencies by learning the identities of . . . private citizens who wrote to government officialsquot;), aff'd per curiam, No. 96-5304, 1997 WL 411685 (D.C. Cir. June 19, 1997) Holy Spirit Ass'n v. U.S. Dep't of State, 526 F. Supp. 1022, 1032-34 (S.D.N.Y. 1981) (finding that "strong public interest in encouraging citizens to communicate their concerns regarding their communities" is fostered by protecting identities of writers).

Perhaps FWS continues to use the cautionary "your home address may be  made publicly available" approach because it has used the internet to receive public comments in the past, and because FWS does not intend to redact any portion of thousands of e-mails.  See, e.g. the public comment and privacy procedures on  While the inability to redact thousands of e-mails might be understandable, two counterpoints should be noted.  First, as a matter of common sense, e-rulemaking should not necessitate the collection of home addresses from citizens commenting on Endangered Species Act implementation.  Second, as mentioned above, FWS already abandoned the electronic rulemaking process, and doesn't get thousands of e-mails anymore.  Indeed, the same Federal Register notice quoted in the second paragraph above specifically states that people should "mail or hand-deliver information on the following species to the U.S. Fish and Wildlife Service, Field Supervisor, at the corresponding address below..."

Giving the FWS staff and Department of Interior solicitors, as a whole, the benefit of the doubt, I suspect that many of these well-meaning public servants have not even noticed this problem.  Staffers working on proposed rules may be simply cutting and pasting prior Federal Register notices.  But somewhere along the line, somebody wrote and chose to include this "home address" warning in the Federal Register.  FWS should correct its mistake.

Mass extinction coming soon, says IUCN, and polar bears cannibalism may serve as partial proof


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 One in four mammals risks extinction, says Reuters, citing an International Union for Conservation of Nature (IUCN) report.  "A quarter of the world's mammals are threatened with extinction, an international survey showed on Monday, and the destruction of habitats and hunting are the major causes."  Among them is the polar bear...

Polar bear photo by Ellizabeth Labunski from U.S. Fish & Wildlife Service.  Polar bear survival depends on large and accessible seal populations and vast areas of ice from which to hunt.The most productive seal-hunting periods are during the spring and early summer (before the ice retreats) and following the open-water period in the fall. Because changes in sea ice are most dramatic during the summer/fall, this is the time when it can be hardest for bears to hunt seals. A reduction in sea ice can extend the time period during which bears do not have access to their primary prey. The effects of a longer ice free season can cause a decline in polar bear health, reproduction, survival, and population size.  See FWS fact sheet.
In fact, CNN offers some dramatic -- frightening! -- photography of the real consequences of global warming, as well as a recent story on the dramatic decline of arctic ice leading polar bears to turn to cannibalism for survival.  

Do greens know diplomacy? In the eyes of some, W can do nothing but harm.


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At this point, there is nothing George W. Bush or Interior Secretary Dirk Kempthorne can do.  Any action taken with respect to the Endangered Species Act -- even the do-gooder announcements -- will receive criticism and suspicion.  Take, for example, the recent announcement that the U.S. Fish and Wildlife Service is applying a newly developed, ecosystem-based approach to species conservation, and adding 48 species found only on the island of Kauai to the federal endangered species list.  See FWS press release.  In addition, as NPR reported, "the action by the Interior Department would designate about 43 square miles as critical habitat for all the species rather than considering each species' habitat separately, which has been the practice for three decades."  

Still, in response to this responsible approach to ESA implementation, some green voices remain unsatisifed. reported that "Bush Protects 48 Endangered Species in Hawaii While Ignoring 6 Western Species," while Plenty Magazine declared the approach "spin" by the administration, despite the previous use of such ecosystem management by the Clinton administration.  Taking only a slightly more moderated tone, the Center for Biological Diversity couldn't help itself either, calling the action "long overdue," and an editorial in Hawaii's Star Bulletin considered this "Species protection better late than never."    

I do not mean to be an apologist for this President or his environmental record.  And I know that the listing of any new species, or additional critical habitat, for protection under the ESA is not really good news.  (In this case, it means that another 48 species are facing potential extinction.)  But if ever there was a time for diplomacy, this was it.  It seems ridiculous and self-destructive to me when the blogosphere and environmentalists ridicule a Presidential administration for doing the right thing.  Maybe next time, they can consider a different approach: saying "thank you."  

Photo of Hawaii's Akikiki by Eric VanderWerf, from  According to Audubon, the swamp and lowland-dwelling bird is one of the least understood of all surviving birds on the Hawaiian Islands but likely faces the same threats confronting other native birds: habitat loss and alteration, introduction of alien species, mosquito-borne diseases, and impacts from natural events such as hurricanes.

P.S.  National Wildlife Refuge Week is coming up, October 12-18, 2008.

ESA news emerging in Florida...


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While the Federal Circuit's recent decision on takings law and the Endangered Species Act may one day be recognized as a huge legal earthquake in California and the western U.S., see ESA blawg (Sept. 29, 2008), in Florida, tropical depressions with ESA-related hurricane potential have been sighted.  

For starters, the National Research Council's Committee on Independent Scientific Review of Everglades Restoration Progress (CISRERP) has released its new report: Progress Toward Restoring the Everglades: The Second Biennial Review, 2008 . See story from, or order the document.  

And, on the eve of the three day Florida Fish & Wildlife Conservation Commission conference "Florida's Wildlife: On the Frontline of Climate Change," the Intergovernmental Panel on Climate Change has released its paper on Climate Change and Water.

Stay tuned...

The wolf saga continues... LA Times says excess hunting putting it back on the list of endangered species


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Earlier this year, FWS delisted populations of the grey wolf.  See prior ESA blawg entries in January and February and  Since then, according to a recent LA Times article, hunters have gone on a shooting spree, and the species may be heading back for the protections of the Endangered Species Act.  

YouTube, Sarah Palin, Penn&Teller, and the Endangered Species Act


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Tired of reading your Endangered Species Act news on the internet?  Try watching it.  How about Sarah Palin on You Tube explaining her view that the Endangered Species Act is being abused by extreme environmentalists, and discussing Alaska's lawsuit against the federal government.  Democracy Now! offers a video on Sarah Palin and her policies on climate change and the ESA.  And don't forget the Charlie Gibson ABC World News interview..  

Tired of Ms. Palin?  John Kostyack, from the National Wildlife Federation talks about the proposed ESA consultation rule revisions.  Or visit Penn and Teller's over-the-top, blatantly biased and not even pretending to be objective Bullshit! humor (image from Wikipedia)

Senator Boxer calls Bush administration officials cowards for no-show at hearing on ESA rules


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Earlier today, Department of Interior Assistant Secretary for Fish and Wildlife Lyle Laverty failed to attend a Congressional hearing anticipated to include a discussion of the proposed regulations to amend the Endangered Species Act's consultation process.  Senator Barbara Boxer (D-CA) was especially blunt about the no-show.  "They're cowardly and they have been a danger to the people of this country," Boxer said to an AP reporter.  See story by Matthew Daly.  The same AP story also quotes Interior spokesman Chris Paolino, who said Laverty skipped the hearing at the request of Oklahoma Sen. Jim Inhofe, the panel's ranking Republican, who in turn "formally objected to the hearing because of Boxer's refusal to grant a single GOP request for a hearing during this Congress."

Lyle Laverty is Assistant Secretary of the Interior for Fish and Wildlife and Parks, and previously served as Director of Colorado Parks and a longtime manager with the U.S. Forest Service.

Postscript on Northern Rocky Gray Wolf litigation... FWS reverses its own reversal


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According to the Defenders of Wildlife, who in turn cite recent statements by senior U.S. Fish and Wildlife Service (FWS) officials, "FWS intends to rescind its own wolf delisting rule - issued in March - sometime this week. This will place the Northern Rockies gray wolf back under federal protections.  This action comes on the heels of a decision in July by the U.S. District Court in Missoula granting a request by a coalition of twelve conservation groups for a preliminary injunction, which temporarily placed wolves back under federal protection. The court determined that plaintiffs were likely to prevail against FWS on its claims that delisting was premature because of concerns regarding genetic isolation and the adequacy of state management plans. FWS now intends to ask the court to remand the issue to FWS so it can reconsider its delisting decision."  See prior ESA blawg and PLF posting on the preliminary injunction decision. See also, Defenders of Wildlife's wolf chronology.

Defenders of Wildlife, originally formed in 1947 as the Defenders of Furbearers, is a leading voice in wolf conservation.  They led the litigation against FWS's proposed delisting rule, and state that they are "extremely pleased that the Fish and Wildlife Service has finally bowed to reality by recognizing that there are serious scientific and legal problems underlying their delisting rule."  The depiction of their logo above in no way indicates Defenders of Wildlife's endorsement or sponsorship of this page.

In long-shot legislation, California Congressman seeks to exempt Sacramento Delta from Endangered Species Act


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Implementation of the Endangered Species Act in the Sacramento Delta has been a frequent topic on the pages of ESA blawg.  See ESA blawg on OCAP decision and July PCFFA decision.  While the slow-motion train wreck, thanks to litigation over the delta smelt and other species, continues to plod along in the Federal Court system, the reported yesterday that California Republican George Radanovich "wants to suspend one of the nation's premier environmental laws in order to increase water pumping out of the Sacramento-San Joaquin Delta.  In a long-shot bill being introduced Thursday, Radanovich proposes to exempt two Delta-area pumping plants from the Environmental Species Act during designated droughts."  See also, the Sacramento Bee and Merced Sun-Star.  Although the text of the bill is not yet available (I keep checking Thomas and the Rep.'s website), Radanovich's past official statements before the Congression Subcommittee on Water and Power, blaming the implementation of the ESA and the litigation, are readily available:
We must confront these radical environmental decisions that threaten the way of life of many Valley residents.  Had it not been for the Wagner decision and reduced Delta exports, our farmers would have been better equipped to handle this year’s drought and we would not likely have been in the dire situation that has brought us here.  Instead of looking just at the pumps, Judge Wanger should be looking at predation, overfishing, toxic from the Delta and other things.  It will never happen in the Pelosi Congress, but we should look at enacting legislation that keeps the pumps running at full capacity until there’s a consensus that the pumps have been the sole cause of fish predation...  We cannot afford additional environmentally charged judicial decisions, propped up by a woefully misguided Endangered Species Act, that would further reduce water exports from the Delta, which is already operating at two-thirds capacity.

Rep. Radanovich, who represents the Yosemite Valley region, also endorsed the idea of a perimeter canal to divert waters around the Delta, a solution that might avoid some of the endangered species problems:

Additionally, it is imperative that we have an alternative conveyance around the Delta.  The West Side of the San Joaquin Valley and Southern California depend on the water supply provided from the Delta.  Without an alternative conveyance, another judicial decision with similar effects to the Wanger Delta Smelt decision could devastate California agriculture and the entire economy of the West Side of the San Joaquin Valley.  

P.S.  Heading southbound on I-5 (depending on traffic), the L.A. Times published Andrew Wetzler's editorial column on the Endangered Endangered Species Act.

The sound of bats along the Kissimmee River


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Yesterday, the South Florida Water Management District and newsmedia reported that Endangered Florida bonneted bats have been making sound waves along the Kissimmee River, far from its historic range near Miami.

The Florida bonneted bat is distinguished by its large size: from 4.9 to 6.5 inches long, with a wingspan of almost 20 inches. Unusually large broad ears slant forward over the eyes, like a bonnet. See article from  Photo by Ralph Arwood available at Florida Bat Conservancy.    

According to the SFWMD September 16, 2008 press release: "The Florida Bat Conservancy, under contract with the Florida Fish and Wildlife Conservation Commission (FWC), identified the bats while gathering data about bat species occurrence and population levels in the southwest region of the state. Using the surveys results, plans are being developed to enhance bat habitat on South Floridas public lands.  Discovering the presence of Florida bonneted bats (Eumops floridanus) in the Kissimmee region is a major finding, according to the Florida Bat Conservancy. The nearest previously known location is more than 50 miles to the southwest in the Babcock-Webb Wildlife Management Area, which is owned and managed by the FWC. In the bat survey, conservancy staff documented the bonneted bats well north of Lake Okeechobee, on the Kissimmee River Public Use Area and Kissimmee Island Cattle Company (KICCO) properties."

Seems that the Kissimmee River Restoration must be working.

Sarah Palin wins CBD's rubber dodo award


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As readers of this blawg know, I'm not a big fan of the insulting practice of anti-awards. The newsmedia tends to disagree with me however, so, for anyone interested, here it is:

The Center for Biological Diversity announced that Sarah Palin earned the 2008 Rubber Dodo Award.

Photo of Sarah Palin (!?), deer hunter, from (if it's photoshop, blame them!)

I know, shocking that CBD would pick such a high profile recipient, huh?  Ms. Palin's claim to fame was her "deceptive public relations campaign" and "frivolous lawsuit" filed against the Bush Administration's decision to list the polar bear as a threatened species (but with important limitation.) See prior ESA blawg.  

Among endangered species thinkers, CBD is not alone in its opinion of Ms. Palin.  In fact, Andrew Sullivan recently wrote an article about "The Odd Lies of Sarah Palin," emphasizing her abuses of science in the context of opposing the polar bear listing.  Sadly, Ms. Palin appears to have blatantly misrepresented the scientific opinions of her own state scientists, who concluded that yes, indeed, the polar bear was a threatened species.  See  Another remarkable item on Ms. Palin: despite the opposition of her constituents, who twiced passed laws against it, Ms. Palin's state administration actively supports aerial hunting of wolves.  See report by  

Another ESA controversy: Endangered Species Coalition says proposed rule (not the one you think) misled public, reduced habitat protections


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It seemed innocent enough.  On August 6, 2008, the FWS announced a change in the formatting of the listing table for endangered and threatened species.  See ESAblawg post.  The summary of the rule stated that FWS proposed to amend "the formats of the Lists of Endangered and Threatened Wildlife and  Plants to include current practices and standards that will make the regulations and Lists easier for the public to understand."  According to a September 4, 2008 letter from the Endangered Species Coalition to FWS, the announcement is misleading:

Rather than just affecting formatting, the proposed rule also changes the explanation of the "historic range" column entries in the lists of threatened and endangered wildlife and plants to undo the long-standing practice of treating all members of any species, subspecies or population on those lists as subject to the prohibitions of the Act. Instead, the proposed regulations would treat only those members of the taxon within the geographic area described in the new "where listed" column of the lists as subject to the prohibitions of the Act. These changes could result in an enormous cut in the amount of protection imperiled species receive because these species would be covered by the Endangered Species Act only within those habitat areas that both are large enough to be deemed a significant portion of the species' range and where the species are determined to be either threatened or endangered within that portion.

In that letter, ESC further explains that the format changes appear to embrace a controversial interpretation of the ESA offered in a Department of Interior Solicitor's Opinion (March 16, 2007).  The Defenders of Wildlife believe the opinion tossed aside 30 years of statutory interpretation,  and an analysis by the lawyers at Van Ness Feldman also emphasized that this opinion represented a significant policy change and would not be entitled to Chevron deference from the judiciary.  Moreover, and perhaps most significantly, the Solicitor's Opinion means that, to the extent a species is not listed throughout out all of its range, the Section 7 consultation requirements and Section 9 “take” restrictions apply only to specifically identified populations, and not to the species as a whole.

If the accusations by the ESC are correct, then FWS may have violated of one of the most elementary provisions of the Federal Administrative Procedures Act, codified in 5 U.S.C. 553(b).  This provision, governing the requirements of government agency rulemaking, states simply that "General notice of proposed rule making shall be published in the Federal Register..." and further states that "the notice shall include (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved."   The notice of the proposed rule contains no reference to either the Solicitor's Opinion, nor the concept of "significant portion of the range."  Again, if ESC's accusations are correct, the analysis above suggests that FWS did not properly explain the nature of the public rule making proceedings, nor did it explain the terms or substance of the proposed rule.    

This rule represents the second major source of controversy between the administration and environmentalists over proposed rulemaking, although the proposed changes to Section 7 consultation have obtained far more media attention.  SeeESAblawg (Aug. 16, 2008).  The truth is out there...

Endangered species at the polls: the candidates views


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McCain quotes Teddy Roosevelt, but votes George W. Bush, says the High County News, noting that McCain led efforts to grant ESA exemptions to the University of Arizona and Fort Huachuca military base.  For her part, Sarah Palin led Alaska's recent opposition to the listing of the polar bear as a threatened species, and in fact, the State of Alaska sued the Federal Government to reverse the decision, as reported in, among other places, the National Journal.

Image from

On the other side of the aisle, Barack Obama acknowledges both the conservation benefits and the controversial imperfections of the ESA, says a March 2006 quote reported by Primate Sanctuary.  However, Obama opposes the Bush administration's recently proposed rules amending the ESA consultation process, says Yahoo and the AP.    Joe Biden views the ESA favorably, as evidenced by his co-sponsoring of Senate Resolutions including S. Res. 121 (Jun 29, 2001) to end commercial whaling and illegal trade in whale meat, and S. Res. 125 (May 1, 2007) supporting Endangered Species Day.

Proposed Section 7 consultation rule revision announced by FWS and NOAA


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73 Fed. Reg. 47868 (Friday, August 15, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 402; [FWS–R9–ES–2008–0093] RIN 1018–AT50; DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration; 50 CFR Part 402; [0808011023–81048–01] RIN 0618–AX15; Interagency Cooperation Under the Endangered Species Act; Proposed Rule)

The Department of Interior, undaunted by the criticisms of the proposed ESA regulations, has been aggressive in defending the proposal.  See Press Release and DOI Home Page with Myths and Realities.  Image of Secretary Kempthorne at a recent conference.

SUMMARY: The United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, ‘‘Services’’ or ‘‘we’’) propose to amend regulations governing interagency cooperation under the Endangered Species Act of 1973, as amended (Act). The Services are proposing these changes to clarify several definitions, to clarify when the section 7 regulations are applicable and the correct standards for effects analysis, and to establish time frames for the informal consultation process. DATES: We must receive your comments by September 15, 2008 to ensure their full consideration in the final decision on this proposal.

RECAP: Earlier this week, the AP obtained a copy of these proposed regulations, and ESA blawg (Aug. 11, 2008) posted a summary of the regulations.  Criticism has been immediate and abundant.  In fact, The New York Times not only offered a harsh editorial, but also took the additional step of helping its readers to submit their own critiques.  Remarkably, FWS has announced that it WILL NOT ACCEPT E-MAIL.  See San Francisco Chronicle.  NRDC has offered to help people with that problem by printing their e-mail submissions.  See Andrew Wetzler, NRDC Switchboard.  

EXCERPT: The core (and most controversial) section of the proposed regulations states as follows:
§ 402.03 Applicability.
(a) Section 7 of the Act and the requirements of this part apply to all actions in which the Federal agency has discretionary involvement or control.
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
    (1) Such action has no effect on a listed species or critical habitat; or
    (2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
    (3) The effects of such action on a listed species or critical habitat:
        (i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
        (ii) Are wholly beneficial; or
        (iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.

KEITHINKING:In general, I agree with some of the criticisms, and the need for careful public scrutiny of these regulations.  However, I offer five substantive observations...

AP and CNN: "Bush could weaken Endangered Species Act"


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Citing a draft copy of regulations obtained by the Associated Press, CNN reported that "the Bush administration wants federal agencies to decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants."  In addition, the Interior Department said such informal consultations are "no longer necessary because federal agencies have developed expertise to review their own construction and development projects." In response, the National Wildlife Federation  and magazines and bloggers have declared the regulations a "sneak attack" on the Endangered Species Act.  

Image of Dale Hall, Director of the U.S. Fish & Wildlife Service.  Despite his career of service to the FWS, and his master's degree in fisheries science, some critics will inevitably resume the Fire Dale Hall campaign over these regulations, or otherwise declare the rule proposal nothing but a Bush Administration tactic.  
Image of James Balsiger, NOAA Acting Assistant Administrator for Fisheries (bottom).  Mr. Balsiger is also a career NOAA scientist with a Ph.D. in ecology.  ESA issues are rarely as black and white as some people would like to think.

ANALYSIS: Prior postings on these pages have acknowledged the good and the bad of the ESA (see right column), and certainly, some degree of regulatory reform to the ESA could be appropriate.  Moreover, ESA reform has hardly been a secret, and NPR was reporting on potential changes only a year ago.  These proposed regulations disclosed (or leaked) earlier today, however, as posted on the NWF webpage (and sadly, not currently available from the government agencies proposing them) are substantial in scope.  

At their core, the proposed rules rewrite the Section 7 consultation process, significantly limiting the need for U.S. Fish & Wildlife Service or National Marine Fisheries Service review of the actions proposed by other federal agencies, particularly in the context of informal consultation with the FWS and NMFS.  By the regulation's own terms, "The intent of these proposed exclusions is to reduce the number of unnecessary consultations." Specifically, the proposed rule changes include:

(a) revising the informal consultation process associated with a biological assessment, giving more discretion to the federal agency proposing an action;

(b) narrowing the scope of "cumulative effects" in the ESA, even more so than the current scope (which in turn is already narrower than the cumulative impacts analysis required by the National Environmental Policy Act);

(c) narrowing the definition of "effects of the action" to require Section 7 consultation only when the action is an "essential" cause of the effects, meeting the legal notion of "but for" causation, and only when there is "clear and substantial information" that the effects are "reasonably certain to occur."

(d) clarifying when a proposed federal action has "no effect" on a species, and thus eliminating the need for consultation for actions with "discountable" or "insignificant" or "not capable of being meaningfully identified or detected" or "remote" effects;

(e) reinforcing the view that there is no need to consult on the effects of greenhouse gas emissions;

KEITHINKING: In its explanation of some of the proposed changes, the draft rule offers a reasonable and even important insight.  For example, the document states that: "In 1986... very few Federal action agencies had any in depth expertise with section 7 and listed species.  For that matter, the more complex consultation process was relatively new to the Services (FWS and NMFS) as well... We recognize that Federal action agencies have more expertise now than in 1986, and are much more aware of the consequences and significance of their findings..."  While reasonable minds may disagree, and the specific proposals might go further than some people think necessary, the "experienced agency" theory quoted above does provide logical support for some changes in the ESA, and especially in the informal consultation process.  However, by tying the proposed rule to climate change discussion, the proponents of the rule have done a disservice to their objectives.  Critics of this proposed rule -- empowered and perhaps justified by the secrecy in which the rules were developed -- will declare it to be nothing more than an over-reaction to the potential for the ESA to be used (or abused) as part of the climate change policy debate.  And that fact, in turn, simply highlights (again) the utter lack of a reasonable national policy for dealing with an issue that may become the defining problem of the century.  In other words, rather than tackling the problem of climate change by seeking appropriate new laws, officials in FWS and NMFS have proposed rewrites to the tangentially-related Endangered Species Act, and even if the rewrites had merit, that merit will be lost in a noisy and emotional debate.  

Florida Fish & Wildlife Conservation Commission takes on climate change


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Earlier today, the Environmental News Service reported that "Florida Tries to Shield Wildlife From Climate Change," and noted the Florida Fish and Wildlife Conservation Commission's (FWCC) upcoming conference on climate change in Orlando.  According to the ENS, "Florida is inhabited by endangered and threatened land mammals such as bears, panthers, Key deer, mink and otters, rats and mice, voles and bats. Florida waters host manatees, and endangered humpback, fin, sperm, sei whales, and Atlantic right whales."   That, of course, is just a partial list,  To review the upcoming conference agenda, click here.

According to recent modeling efforts, sea level rise and a decrease in precipitation could have profound ecological effects on Florida's unique peninsular ecosystems and biota, especially the endangered Florida panther (Puma concolor coryi).  In fact, the model predicted dramatic reductions (from 29% to 90%) for the species' habitat .  The consequences are particularly dire for the panther which has no other populations outside of low-lying south Florida.  Caption information from Andrew Whittle, Graduate Student, University of Kentucky Department of Forestry

ESA enforcement actions -- by agencies and civilians -- in the news


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In enforcement actions, NOAA’s Fisheries Service Office of Law Enforcement is offering up to $1,000 for information leading to the arrest and/or conviction of persons poaching endangered sea turtles in the Territory of Guam and in the Commonwealth of Northern Marianas Islands; meanwhile, Maine wildlife officials are investigating the death of a piping plover at Goose Rocks Beach last week.  It continues to sadden me that some people would intentionally kill endangered species.  
Then again, as we were rudely reminded by Public Employees for Environmental Responsibility (PEER) and Wild Fish Conservancy, sometimes even the "greenest" among us tolerate intentional death of listed species, at least when national security is at stake.  Still, undaunted by our military needs, PEER served legal notice that they would sue the Navy under the federal Endangered Species Act for the threat detonations pose to protected wildlife in the Puget Sound.

ESA in the news


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